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2/20/2009
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Violent Video Game Law Ruled Unconstitutional

The 2005 law prohibited the sale of violent video games to anyone under 18 and imposed a fine of as much as $1,000.

The 9th Circuit Court of Appeals in San Francisco on Friday struck down a California law that restricted the sale of violent video games to minors, asserting that the state does not have the right to control minors' thoughts.

The law was signed by California Gov. Arnold Schwarzenegger in October 2005 but never took effect; it was immediately challenged by the video game industry.

It called for prohibiting the sale of violent video games to anyone under 18 and imposed a fine of as much as $1,000 for anyone caught selling video games in violation of the law.

The law was designed to restrict violent content through the same criteria used to restrict obscene sexual content. As the court saw it, the state was offering "an invitation to reconsider the boundaries of the legal concept of 'obscenity' under the First Amendment." The court declined to accept that invitation.

As Judge Consuelo Callahan observed in the 3-0 ruling, other courts have established that videos containing violence but not sexual content cannot be obscene under the law.

The state argued that the restrictions were necessary to prevent psychological and neurological harm to minors who play violent video games. The U.S. Supreme Court has acknowledged that the state has a compelling interest in preventing such harm to minors.

However, Callahan's opinion makes clear that the three judges considering the case have seen no compelling scientific evidence that violent video games are harmful to minors.

"Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the state's claimed interest," the opinion says. "None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable."

In fact, the ruling cites a 7th Circuit opinion that suggests exposure to violence is necessary to function in society.

The cited opinion, from American Amusement Machine Association v. Kendrick, says: "Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

In the absence of any proof of psychological harm from video games, the court sees the state's restrictions as an attempt to police what minors are thinking.

"In evaluating the state's asserted interests, we must distinguish the state's interest in protecting minors from actual psychological or neurological harm from the state's interest in controlling minors' thoughts," the ruling states. "The latter is not legitimate."

Bo Andersen, president and CEO of the Entertainment Merchants Association, which challenged the law, expressed approval of the decision in a statement.

"We are extremely gratified by the court's rejection of video game censorship by the state of California," he said. "The ruling vindicates what we have said since the bill that became this law was introduced: Ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content. "

Andersen urged California government officials not to appeal to the Supreme Court, calling the estimated $283,000 in taxpayer money spent by the state on this case so far an "ill-advised, and ultimately doomed, attempt at state-sponsored nannyism."

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