Video Games and Free Speech

There are countless parents who will not allow their children to play violent video games, in which players are able to kill, maim, dismember or sexually assault human images in depraved ways. The video game industry rates them, and some stores use that rating to decide whether to sell a particular game to a minor.

But California went too far in 2005 when it made it illegal to sell violent video games to minors. Retailers challenged the law, and a federal appeals court rightly ruled that it violates the First Amendment. Last week, the Supreme Court said that it would review that decision. We hope it agrees that the law is unconstitutional.

California’s law imposes fines of up to $1,000 on retailers that sell violent video games to anyone under 18. To qualify, a game must, as a whole, lack serious literary artistic, political or scientific value for minors.

But video games are a form of free expression. Many have elaborate plots and characters, often drawn from fiction or history. The California law is a content-based restriction, something that is presumed invalid under the First Amendment. The Supreme Court has made it clear that minors have First Amendment rights.

California has tried to lower the constitutional standard for upholding the law by comparing it to “variable obscenity,” a First Amendment principle that allows banning the sale of some sexually explicit materials to minors that cannot be banned for adults. The United States Court of Appeals for the Ninth Circuit, in San Francisco, like other federal courts, rightly refused to extend that doctrine to violent games.

Under traditional First Amendment analysis, content-based speech restrictions can survive only if they are narrowly tailored to promote a compelling government interest. California says its interest is in preventing psychological or neurological damage to young people. The appeals court concluded that the evidence connecting violent video games to this sort of damage is too weak to make restricting the games a compelling government interest.

Even if the interest were legitimate, the state could have used less restrictive methods. The video game industry, like the movie business, has a voluntary rating system that provides buyers and sellers with information on the content of specific games, including age-specific ratings, ranging from “early childhood” to “adults only.” The government could do more to promote the use of voluntary ratings by retailers and parents.

California lawmakers may have been right when they decided that video games in which players kill and maim are not the most socially beneficial form of expression. The Constitution, however, does not require speech to be ideal for it to be protected.