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Supreme Court Videogame Ruling: Free Speech Limits on Sex, But Not Violence

No matter how violent a videogame is, it can’t be considered obscene

The Supreme Court's ruling on violent videogames means a 16-year-old can buy hyper-violent first-person shooter games in which he spends hours reducing opponents to computer-animated gristle.

But it's illegal for him to buy Playboy.

That strange juxtaposition says plenty about America's odd relationship with sex and violence, but First Amendment defenders hail Monday's ruling as a huge victory for free speech. The California law, passed in 2005 but never enacted, would have fined retailers up to $1,000 for selling violent games to minors.

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By ruling 7-2 that the law was unconstitutional, the justices refused to add to the list of material deemed unworthy of First Amendment protection. The decision continues the status quo: Only sexual material can be deemed obscene and therefore unprotected by the First Amendment.

"The State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children," Justice Antonin Scalia wrote in the majority opinion. "That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence."

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Restricting violent games could have easily led to restrictions on other mediums, First Amendment attorneys told TheWrap.

Floyd Abrams, who represented the New York Times in the Pentagon Papers case, said a ruling for the California law would have been harmful "not just to video games but to great literature — and mediocre literature."

"We're at least better off that we don't now have some sort of new rule allowing … a regime where courts and justices pass judgment upon whether the material has any value or not," Abrams told TheWrap.

While the court ruled there is no history of limiting children's ability to view violence, it has long backed laws limiting minors' access to sexual material.

The 1968 Supreme Court case Ginsberg v. New York found that a retailer could be prosecuted for selling sexually oriented material to children, even if the material was not considered obscene for adults. (The case involved the owner of a mom-and- pop shop who sold two "girlie" magazines to a 16-year-old.)

The existence of such laws mean rulings on the enforcement of existing obscenity laws don't create new areas of unprotected speech — such as violent video games.

Monday's ruling suggests the court may even be open to reconsidering past rulings on obscenity, said attorney Robert Corn-Revere, who successfully petitioned New York Gov. George E. Pataki to grant a posthumous pardon to Lenny Bruce for a 1964 obscenity conviction.

"Future cases may ask the question of whether these early cases should be considered," he said. "I think for today let's just savor our victory, that the government didn’t permit it to go further."

The court's decision leaves the industry regulated only by the Entertainment Software Ratings Board, which assigns ratings such as "M" for mature. The board was established by the Entertainment Software Association, which sued over the California law.

"It’s a completely voluntary system, and some people use it and some people don't," said Jim Steyer, CEO of the children's watchdog group Common Sense Media, which supported the law.

Many games, of course, mix sex and violence. A current ad for "Duke Nukem Forever" announces, "This game has bazookas. Both types," and features buxom schoolgirls sitting at the hero's feet. (It may sound like a tagline written for teenage boys, but Strauss Zelnick, CEO of Take-Two Interactive, which makes the game, has said it isn't marketed to children.)

Steyer said that given the court's ruling Monday, he didn't see much hope of trying to restrict minors' access to video games on obscenity grounds, even if they have sexual content – "at least for the foreseeable future."