By Ben Kuchera
A 2005 law making the sale of certain games to minors a crime, including compulsory warning labels, has once again been struck down in the courts as being unconstitutional. This is yet another win for the game industry, but it's unclear if legislators have learned their lesson: these laws are expensive, doomed, and bad government.
It has been a long, mostly disastrous road for Governor Schwarzenegger's 2005 bill that sought to make selling games to minors a crime, as well as to require certain games to carry warning labels. The bill was passed, but Judge Ronald Whyte issued a preliminary injunction against its enforcement before it impacted retail sales in California. In 2007 the law was struck down as being unconstitutional, with Schwarzenegger promising to continue to appeal the decision. Today that appeal was rejected, likely killing the law for good.
While this latest ruling could be appealed to the Supreme Court, the continued effort after these losses would seem almost Sisyphean; the courts have never been kind to bills that seek to put special legislation on video games. "Is there anything out of limits for the Legislature to prohibit to minors? What about games where people eat unhealthy foods and get fat?" Judge Alex Kozinski asked when hearing the appeal. "Why not a law targeting games that teach children bad living habits, such as eating unhealthy food or using plastic bags?"
The studies used as evidence that games were dangerous—above and beyond other forms of media—were found to be unconvincing by the court. Without any causal links, and with no such laws prohibiting minors from purchasing R-rated movies or even reading violent books, singling out video games creates Constitutional problems no lawyer has been able to argue through.
"We couldn’t be happier. Federal courts have found all nine legislative attempts to curtail the sale of violent video games invalid under the First Amendment, definitively showing that video games are protected speech, just like other content such as books, comic books, movies, and music," Jennifer Mercurio, Director of Government Affairs for the Entertainment Consumers Association said.
This is just the latest in a long string of wins for the video game industry in the courts, as attacks on games have turned out to be long and expensive for the states. The lesson still hasn't been learned however, as Leland Yee, the author of the bill, has pledged to keep fighting. "While I am deeply disappointed in today’s ruling, we should not stop our efforts to assist parents in keeping these harmful video games out of the hands of children," he said. "I believe this law will inevitably be upheld as Constitutional by the US Supreme Court. In fact, the high court recently agreed, in Roper v. Simmons (2005), that we need to treat children differently in the eyes of the law due to brain development."
It's unclear what, if anything, the Supreme Court will find that the courts before it failed to notice.
