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Appeals Court Strikes Down California's Violent Game Ban 190

Posted by Soulskill
from the legislation-terminated dept.
NewYorkCountryLawyer writes "The US Court of Appeals for the Ninth Circuit has struck down as unconstitutional a California statute purporting to ban the sale or rental of violent video games to minors. In a 30-page decision (PDF), in Video Software Dealers Association v. Schwarzenegger, the federal appeals court ruled that 'the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the 'variable obscenity' standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.'"
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Appeals Court Strikes Down California's Violent Game Ban

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  • by LordVader717 (888547) on Friday February 20, 2009 @09:19PM (#26937423)

    While many here will certainly applaud this decision, I find the double-standard amazing. If we can ban sales of pictures of people having sex to minors and impose other draconian punishment, then why is obscene violence any different?

    I somehow doubt the founding fathers would have equated free speech to depictions of extreme violence, though I'll undoubtedly get modded down for this.
    There's certainly a case for forbidding censorship of any kind, but mixing up the values brings up crap like this.

    I certainly am not happy about my freedom to criticize politicians being considered on the same level as some spotty fifteen year old kid's "right" to buy GTA.

  • by moderatorrater (1095745) on Friday February 20, 2009 @09:37PM (#26937519)
    Yeah, and video game laws lead in the number that wind up being reversed, too. I can only imagine how frustrated lawmakers must be that free speech applies to things they dislike, too.
  • by interkin3tic (1469267) on Friday February 20, 2009 @09:43PM (#26937563)

    Thankfully, the judges can tell the difference between good science and bullshit science. Too bad the fucking family values voters, who vote more often than people who don't have agendas to push and get politicians who pander to their votes, can't.

    Fixed that for you. The politicians don't care one way or the other. If those voters got it in their heads that painting the washington monument pink would prevent violence, then we'd have serious proposals to start buying pink paint and lots of rollers.

  • by JustNilt (984644) on Friday February 20, 2009 @09:58PM (#26937649) Homepage

    I won't get into the should kids or shouldn't kids buy various games issue. I don't think that's the real question these articles raise. The real issue is why would any politician vote for a law such as this which has already been shown time and again to be an automatic failure then waste money defending the failed law. As far as why judges strike these down, that's an interesting question so I asked a client of mine that happens to also be a judge once.

    The main issue for the courts, it seems, is that it's extremely difficult, if not impossible, to tailor legislation to violence alone in the same manner as it is with pornography. This difficulty of is the real issue from what I can gather. We can say any evidence of bloodshed is obscene but then what about a safety video showing actual injury? By definition, these things are both bloody and violent yet are absolutely something minors should see before they operate certain power tools.

    What it boils down to is what is considered obscene, really. Pretty much everyone (I suppose there are some few who'd disagree, thus the qualifier) agrees that nudity can be obscene, although not always. We likewise can agree that certain subject matter such as sexually explicit material are inappropriate for people under a certain age. Not everyone, however, agrees that violence, in and of itself, is necessarily obscene.

    I hope this makes sense; I'm neither a lawyer nor a legal expert so I may habve mangled this somewhat.

  • by Lemmy Caution (8378) on Friday February 20, 2009 @10:13PM (#26937731) Homepage

    Exactly. We can have games in which we run around sawing people's heads off, disemboweling them, torturing them, gunning them down by the thousands - but at least we won't see their nipples!

  • Re:Good Call (Score:5, Insightful)

    by mkiwi (585287) on Friday February 20, 2009 @10:15PM (#26937753)

    I'm not so sure.

    We ban R-rated films from minors without a parent accompanying the kids. The reason for this is the graphic nature of many films. (See Saving Private Ryan)
    Kids are exceptional impressionable, and many of these games are as violent if not more so than many R-rated movies.
    I have no problem if the kid's parent comes to the store and buys the game with the child. However, children alone and without supervision should not be allowed to randomly pick up ideas that they have no guidance for.

    I know I'll get modded down. There's a reason these things should not be available to kids without guidance. The human brain does not develop its judgement part until between 18-22 years old, and the judgement of kids younger than 18 is notoriously horrible.

    IMHO, there are a majority of kids who don't have proper guidance and have no moral frame of reference to deal with these situations. Examples:

    - Recent story about a girl arrested for text messaging during class and putting the phone in her underwear so the teacher couldn't get it.
    - The many people who do professional wrestling moves on their little brothers and end up killing or disabling them.
    - Kids who do karate moves on others because Chuck Norris is so badass.
    - The girls at a Massachusetts middle/high school who treat getting pregnant is no big deal and mom will take care of the baby anyway.
    - The fact that two spaces after the end of a sentence seems to be too much to ask for.

    I love libertarian views, but this stuff is not meant for people who have no rational frame of reference. I do not want these people influenced by something they are physically incapable of understanding. That said, there are a few exceptions, and the parents need to be the judge to determine whether that maturity is there or not.

  • by geekboy642 (799087) on Friday February 20, 2009 @10:29PM (#26937835) Journal

    That is an absolutely salient observation for any time somebody parrots the line about the founding fathers. Those guys, well, they're dead. WE are the country now.

  • Re:Good Call (Score:3, Insightful)

    by NewYorkCountryLawyer (912032) * <ray@be[ ]rmanlegal.com ['cke' in gap]> on Friday February 20, 2009 @10:31PM (#26937849) Homepage Journal

    This was a really good ruling. Leave censorship to the parents. There has been yet to prove a direct corollation between violent behvior and video games. Some studies have shown that operrant conditioning is happening where video game players may overcome the natural inhibition to kill. However, this theory fails to explain why most people that play violent video games do not go out and act like that in the real world. Behavioral science, while fascinating, is inexact at best. Legislating people's actions based on an inexact science is never a very good idea.

    When I was a kid my favorite game was war and my favorite toys were toy guns. In real life I've never in my life ever used a weapon, not even a stick, against another living creature, or even wanted to.

    As far as I'm concerned coming up with a law like is just a bunch of phony politicking, pandering to the dumber voters amongst us.

  • I don't think the GP was arguing that the lifting of the ban is bad, it's just a curious double standard. I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.

    In my view the bans on 'obscenity' are equally idiotic, just political pandering.

  • What it boils down to is what is considered obscene...

    What I want to know is where does one group of people get the right to legislate for the rest of us what is 'obscene'.

  • by Kesch (943326) on Friday February 20, 2009 @11:31PM (#26938201)

    There's a worse double standard here though that was struck down. Video games vs. Every other form of media. In the extreme case, what if they had tried to pass a similar law for books? Not even movies are subject to this though, there is no legal requirement for movies to be rated, or for theaters to bar children from movies. All rating and enforcement is done voluntarily by the theaters.

    The double standard we have for sex and violence is a deep rooted societal issue that can't be undone with a few court rulings, but rulings like the one in the TFA can sure as hell beat back the tide of idiot legislators that try to pass this brain-dead anti-video game laws.

  • by LateArthurDent (1403947) on Friday February 20, 2009 @11:59PM (#26938315)

    While many here will certainly applaud this decision, I find the double-standard amazing. If we can ban sales of pictures of people having sex to minors and impose other draconian punishment, then why is obscene violence any different?

    I completely agree, and I hate the double standard myself. Personally, I do applaud this decision, and I'd similarly applaud a decision banning sales of pictures of people having sex to minors.

    I somehow doubt the founding fathers would have equated free speech to depictions of extreme violence

    That might be true, but it's quite irrelevant. If you think it's right that they would be able to decide what equates to free speech and what does not, what you're actually doing is advocating a state-vetted list of things you can and cannot say. That's exactly the opposite of free speech. What makes them right?

    I certainly am not happy about my freedom to criticize politicians being considered on the same level as some spotty fifteen year old kid's "right" to buy GTA.

    Don't think of it in those terms. It's not that they have a right to buy GTA. It's that the government doesn't have a right to stop them. That's the job of the parents of this spotty fifteen year old kid. Parents these days think that educating their kid means sending them to school and plopping them in front of the tv. Monitoring your kids, especially during the teenage years is tough, but that doesn't mean the government should do your job for you.

  • Re:Good Call (Score:3, Insightful)

    by TriezGamer (861238) on Saturday February 21, 2009 @01:40AM (#26938715)

    If you think GTA glorifies rape, you need to get your head checked.

  • by pcolaman (1208838) on Saturday February 21, 2009 @02:26AM (#26938885)
    I love how people who are pushing family values have an agenda to push, while other people "don't have an agenda." Dude, everyone has an agenda. You are naive if you believe otherwise. There are people who want god as a fixture in every aspect of public life. They have an agenda. There are people who feel that god should never be mentioned in any context in public life. They have an agenda. There are people who don't care. Even THEY have an agenda. Hell, there are people who think we should worship their poodles. Everyone has an agenda, it's the people who's agenda you agree with who you blindly don't see as having an agenda. And he's right, the politicians, in the end, really don't give a rats ass about any of these agendas, by and large. Yeah, some might, but most follow their own separate agenda.
  • by pcolaman (1208838) on Saturday February 21, 2009 @02:31AM (#26938907)
    And you know what, those lawyers probably don't give a fuck other than they are getting paid. Hell, betcha I could find a lawyer who would defend Hitler in German war crimes charges posthumously if he thought he would get really good money out of it. Lawyers are like leeches, they live off of feeding, and in this case, they feed off of money.
  • by Rocketship Underpant (804162) on Saturday February 21, 2009 @02:40AM (#26938947)

    I think if Mr. Jefferson could see what kind of presidency Mr. Obama has inherited, he would have fought to have no presidency at all.

  • by Tycho (11893) on Saturday February 21, 2009 @04:01AM (#26939251)

    Yes, but equal rights for women did not seem to be important to the founding fathers either. I would like to be wrong, but do you have citations that point otherwise?

  • by Mistshadow2k4 (748958) on Saturday February 21, 2009 @05:46AM (#26939557) Journal

    I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.

    It's kind of interesting to note that some of the most violent games targeted at young people -- 99% of them male -- are military-style games that this "violence=ok, sex=bad" government apparently has no problem with. There are people out there who think that military action games help to mentally prepare young people for actual military action in years to come. After all, they'd be less likely to panic in such situations, since they'd have some idea about what they need to do to protect themselves. These people must all be paranoid, of course.

    I have far more sympathy for the continental European tendency to view sex as good and violence as bad (even if -- or perhaps because -- it does lead to the French tendency when confronted with a war to say "f*** it...").

    You pot-smoking hippy, you. Seriously. If you dare utter an anti-war sentiment in the US these days, you're going to be called a pot-smoking hippy by somebody. I'm not sure when or how, but that has become a bad thing nowadays.

  • by langelgjm (860756) on Saturday February 21, 2009 @08:36AM (#26940065) Journal

    That may be true, but there is a branch of government whose sole purpose for existing is to interpret the Founding Fathers' intention in the words of the Constitution.

    That's what some judges do, depending on their judicial philosophy, [wikipedia.org] but it's by no means clear that the purpose of SCOTUS is to interpret the Founding Father's intentions.

  • by Dragonslicer (991472) on Saturday February 21, 2009 @10:12AM (#26940463)

    I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.

    My guess would be the fact that we have a centuries-long history of being Puritanical conquerors.

  • by KingAlanI (1270538) on Saturday February 21, 2009 @10:39AM (#26940617) Homepage Journal

    "I'd rather have my son watch a video of two people making love than two people trying to kill one another..."

  • by pcolaman (1208838) on Saturday February 21, 2009 @06:29PM (#26944257)

    You may be able to find a lawyer who would defend Hitler. I, in turn, would be able to find a thousand who wouldn't, at any price.

    Law is a messy business, but most lawyers I know have a working moral compass.

    That points straight to their bank account.

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