Today the Supreme Court agreed to hear California's appeal of a unanimous 9th Circuit decision (PDF) that last year struck down a 2005 state law banning the sale or rental of violent video games to minors. Adapting the test used for obscenity, the law covers any game that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" if "a reasonable person, considering the game as a whole, would find [it] appeals to a deviant or morbid interest of minors"; it is "patently offensive to prevailing standards in the community as to what is suitable for minors"; and it lacks "serious literary, artistic, political, or scientific value for minors."
Half a dozen states have passed laws imposing restrictions on the distribution of violent video games, but all have been overturned by the courts on First Amendment grounds. To uphold the law, the Court would have to recognize a new category of speech that receives only partial First Amendment protection. The Entertainment Merchants Association thinks that's a bad idea (PDF):
In over fifty years of obscenity jurisprudence, the Court has never applied the obscenity doctrine outside the context of sexual speech. What the State proposes in this case would effect a sea change in the permissible regulation of all media—including books, movies, and television programs—that contain violent content and are accessible to minors.
The 9th Circuit declined "to boldly go where no court has gone before" by treating violent material like obscenity when it is accessible to minors. It also noted that the state had failed to demonstrate "a causal link between minors playing video games and actual psychological or neurological harm" and had not shown that alternatives to prohibition, such as the industry's rating system and game platforms with content controls, were inadequate to address parents' concerns.
The Court delayed making a decision about the case, Schwarzenegger v. Entertainment Merchants Association, until after it decided U.S. v. Stevens, which raised the related issue of whether videos depicting violent treatment of animals are outside the scope of the First Amendment. The video game case will be argued during the term that begins in October.