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27 Comm. Law. 2 (2010-2011)
Sex, Violence, and Videogames

handle is hein.journals/comlaw27 and id is 34 raw text is: FROM THE CHAIR Sex, Violence, and Videogames GUYLYN CUMMINS In February 2009, the Ninth Circuit Court of Appeals struck down a California law banning the sale or rental of violent video games to minors and requiring such games to be la- beled 18 (the legal age for adults).I In first writ- ing about the decision for a legal publication, Guylyn Cu I said: While this decision may surprise some California lawmakers and parents, its holding is fully consis- tent with substantial U.S. Supreme Court precedent entitling minors to a significant measure of First Amendment protection, and leav- ing parents with the duty to su- pervise appropriate content.2 Perhaps not. The U.S. Supreme Court just granted review of the decision.3 Mixed in with the legal issues are some of the most troublesome themes for free speech protection-minors, sex, and violence. California's Violent Video Games Act The lawsuit to invalidate California Civil Code §§ 1746 through 1746.5 (the Violent Video Games Act) was filed by several video software associations against California's governor and other elected officials. The Act was spon- sored in part by a child psychologist, and Governor Schwarzenegger signed it into law on October 7, 2005. The fear, although never statistically proven, is that videos showing repetitious killing, maiming, dismembering, and sexual assault contribute to antisocial conduct among minors. The Act prohibited the selling or renting of video games la- beled as violent to minors. Violators Guylyn Cummins (gcummins@sheppard mullin.com) is a partner in the San Diego office of Sheppard Mullin Richter & Hampton LLP n were subject to a civil penalty of up to $1,000 per violation. The Act defined a violent video game as any game where the range of options available to the player in- cludes killing, maiming, dismembering, or sexually assaulting an image of a human being if those acts mins are depicted in one of two ways: Either in a manner that appeals to deviant or morbid interests of minors, is patently offensive to what is suitable to minors according to community standards, and where the game as a whole lacks serious literary, artistic, political or scientific value for minors; or, in a manner that enables the player to virtually inflict serious injury upon images of human beings or characters with substantial human characteristics in an especially heinous, cruel or depraved man- ner that involves torture or seri- ous physical abuse to the victim. The first method borrowed legal doctrine from obscenity laws. Obscenity is not protected speech under the First Amendment, as it is deemed to have no value to society, i.e., to be without serious literary, artistic, political, or scientific value. The second method borrowed language from federal death penalty jury instructions to define cru- el, depraved, heinous and serious physical abuse to include infliction of gratuitous violence upon the victim be- yond that necessary to commit the kill- ing, needless mutilation of the victim's body, and helplessness of the victim. The Act also required each violent video game imported into or distributed in California to be labeled with 18 in large lettering on the front of the pack- age. To justify passage of the Act, the state asserted that it served two com- pelling interests: preventing violent, aggressive, and antisocial behavior and preventing psychological or neurologi- cal harm to minors who play violent video games. The video game associations urged the court to strike down the Act as violating minors' rights guaranteed by the First and Fourteenth Amendments. The Ninth Circuit so ruled. The court first struck down the Act's ban on sales or rentals of violent video games to minors as an invalid content-based restriction on expressive speech. Video games are a form of expression pro- tected by the First Amendment, and the Act sought to restrict expression based on game content, i.e., violence. Like other courts before it, the court adopted the strict scrutiny standard of review for the Act, and not the less pro- tective variable obscenity standard urged by California. The court noted the obscenity standards have been limited to nonprotected, sex-based expression, not violent content that is protected by the First Amendment, and refused to go where no other court had gone before. The court held the Act could not survive strict scrutiny under the First Amendment, both because California failed to prove any compelling interest supported its enactment and because other less restrictive alternatives were available to protect minors. The court first looked to the breadth of the con- tent of video games potentially affected by the Act, noting it was highly diverse and included games like Grand Theft Auto: Vice City, Postal 2, and Duke Nukem 3D, all of which show myriad ways in which characters can kill or injure their adversaries. The court also noted that some of these games have extensive plot lines that parallel historic events or place the player in a position to evaluate and make moral choices. The court next noted the video game industry itself has a voluntary rating system to provide consumers and retail- ers with knowledge about the content of video games. The Entertainment Software Rating Board, an independent, 2 O Communications Lawyer E July 2010