Violence is at the heart of some of the most popular video games. Now the Supreme Court is going to decide whether California, home to many of the country's biggest game companies, can outlaw the sale to children of games in which people are maimed, killed or sexually assaulted.
The video-game industry, which like the film industry runs a self-enforced rating system, has prevailed in 12 lower federal court rulings striking down state and local governments' attempts to regulate what types of games can be sold to minors.
The Supreme Court's decision on Monday to take up the issue, however, could provide the last word on whether video games should be given as much freedom as books and movies or whether the government has an interest in keeping violent games from children as it does with pornography.
"After years of court cases in variety of states and localities, we are looking forward to having the Supreme court issue a definitive opinion on this issue," said Mike Gallagher, president of the Entertainment Software Assn., an industry trade group.
The arguments expected to occur this fall would mark the first time that the nation's highest court has weighed in on the burgeoning video games business, which generated $20 billion last year in the U.S. and is now bigger than the recorded music industry. In addition, games are increasingly stealing consumers' attention from traditional entertainment forms such as movies and television. Several Hollywood companies, including Walt Disney Co. and Warner Bros. are now aggressively investing in developing video games.
Fewer than 20% of the games sold in the U.S. last year carried an M rating, which like an R rating for movies means they are not intended for children under 17. However, some of the most popular had the "mature" rating, including the bestselling game of 2009, the military action simulation Call of Duty: Modern Warfare 2, from Santa Monica-based Activision Blizzard Inc.
State Sen. Leland Yee (D-San Francisco), author of the California law, said he believed that one well-known title that would be affected is the controversial Grand Theft Auto series, which has sold more than 100 million copies. The M-rated games allow players to kill police officers and engage in sexual activity with prostitutes.
"We have laws that say children can't have access to pornography or tobacco or alcohol," Yee said. "There is a state interest in making sure kids can only play these games if parents buy them."
The Supreme Court's move came less than a week after the justices, in a 8-1 ruling, struck down a federal law on free-speech grounds that made it a crime to sell videos of illegal acts of animal cruelty.
Based on that, many had expected the justices to deny the California video game appeal and let stand a federal district court decision in 2007 — later upheld by an appeals court — to strike down the law signed by Gov. Arnold Schwarzenegger in 2005.
Instead, they voted to grant Atty. Gen. Jerry Brown's appeal and hear the case in the fall. The decision will affect similar laws in Illinois, Michigan, Minnesota, Louisiana, Oklahoma and Washington that have also been struck down by courts.
Under the California law, which is currently not being enforced under a court injunction, any game that fit its definition of "ultra-violent" would be required to carry a sticker identifying it as such. Retailers that sells those games to a child under 18 could be fined $1,000.
Monday's decision suggests that at least some justices believe that the California law could be upheld as narrowly targeted because it applies only to minors. The court has said that in other contexts, free-speech protections do not necessarily extend to children and teenagers.
"It strikes me the court might be willing to draw a line between the adult 1st Amendment and the ‘child's 1st Amendment,' " said Rodney Smolla, a free-speech expert and dean of the Washington and Lee Law School in Virginia.
California is not only home to several of the biggest game publishers, including Activision and Electronic Arts Inc., but also many game creators, who have strongly opposed what they see as the threat of government intrusion into their work.
"It would be a shame to have the large and overbearing hand of the government attempt to handle the complexities and subtleties of a medium that's just begun to discover it's own voice," said Kelle Santiago, president of Santa Monica-based independent developer ThatGameCompany.
Proponents of regulating games in the same manner as tobacco have pointed to research that indicates violent games can make players more aggressive and hostile and that many parents aren't able to closely monitor what their children play on a PlayStation 3, Xbox 360 or Wii.
Opponents have countered that there is no demonstrated link between video games and real-world violence.
Nonetheless, in response to political pressure, game publishers and retailers have more aggressively enforced their own ratings code in recent years. A Federal Trade Commission study conducted last year found that the average denial rate for minors who attempted to buy M-rated games was 80%. A 2006 study found that the denial rate was only 58%.
Gallagher of the game industry trade group argued that the medium itself may be changing too fast for government regulators to control.
"All types of media could possibly be implicated by this decision, as video games and other forms of entertainment like movies and music are coming closer and closer together, to the point where you can't always separate one from the other, " he said.
Mark Milian contributed to this report.