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Torture, maiming, decapitating and urinating on human beings are rare topics in Supreme Court arguments. But the justices on Tuesday heard all of them as they entered the world of video gaming in a First Amendment challenge to a California law. By the end of arguments in Schwarzenegger v. Entertainment Merchants Association — arguments peppered with references to Postal 2, Mortal Kombat and other games — several justices appeared sympathetic to California’s effort to prohibit the sale and rental of violent video games to minors. And others seemed uneasy about creating a First Amendment exception for violence, an exception that could swallow books, movies and other violence-laden forms of expression. “Why are video games special?” asked Justice Ruth Bader Ginsburg. “How do you cut it off?” California enacted its statute in 2005, but it has never been enforced. Trade groups for video game manufacturers and distributors challenged the law before it took effect. A federal district court and the U.S. Court of Appeals for the 9th Circuit ruled that the act violated the First Amendment. Zackery Morazzini, a California supervisory deputy attorney general who represented the state, told the justices that the law had two goals: to help parents in restricting their children’s access to deviant violent games and to protect minors from the psychological and developmental harm caused by playing violent video games. “What’s a deviant violent video game, as opposed to a normal violent video game?” asked Justice Antonin Scalia. “Some of Grimm’s fairy tales are pretty violent. Are you trying to ban them too?” And what about rap music and even cartoons, such as Bugs Bunny, which some experts say can have a violent impact on children, asked Justice Sonia Sotomayor. Morazzini argued that it is the interactive nature of violent video games that is especially harmful to minors. The minor, as the game player, inflicts the torture, maiming or sexual assault as part of the game’s plot or narrative. Some studies show this encourages aggressive or violent behavior in minors, he said. The state’s counsel told the justices that California is not seeking a new exception to the First Amendment. Its law, he argued, fits within the exception for obscenity for minors, a category recognized by the Court in its 1968 decision in Ginsberg v. New York. The standard to apply to violent video games, he said, is “quite similar” to the sexual standard announced in the Ginsberg decision: Would a reasonable person find that the game appeals to a deviant or morbid interest of minors, is patently offensive under community standards, and lacks serious literary, artistic, political or scientific value for minors? “The problem is there has been societal consensus on what’s offensive sexual material and there have been judicial decisions,” Justice Anthony Kennedy told Morazzini. “You’re asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this to me indicates the statute is vague.” Representing the Entertainment Merchants Association, Paul Smith, partner in Jenner & Block, faced a similar barrage of questions. “What about the distinction between books and video games? The child isn’t sitting there passively with the game. Might that video game have an impact?” asked Chief Justice John Roberts Jr. “It might have, but there’s not a shred of evidence to show that’s true,” Smith replied. Justice Stephen Breyer picked up the thread, noting there are studies showing that the violent games tend to incite violence. “Did the Legislature have enough evidence? I would say ‘yes.’ All this statute says is: ‘Parents, if you want to see the gratuitous torture of babies — the most horrible thing I can think of — go buy it, go do it on your own.’ What’s wrong with that?” Smith said parents are doing the purchasing of mature-rated videos 90% of the time. There also are ratings and parental controls to help them protect their children. “We do not have a tradition of telling children to hit people over the heads with shovels, to set them on fire, to urinate on them,” countered Roberts. “We protect them from that.” “And parents have been doing that for years,” said Smith, stressing that there is no evidence of a compelling problem that the state is addressing with the law and that parents have lots of tools to protect minors from playing these games. So “Your argument is there is nothing a state can do to limit minors’ access to the most violent, deviant games,” said Justice Samuel Alito Jr. “Yes,” replied Smith. “There is no problem.” Courts have struck down similar laws enacted by at least six states and some municipalities and cities. The California case has attracted 32 amicus briefs, with an overwhelming number supporting the video game industry, including such diverse allies as the U.S. Chamber of Commerce, the American Civil Liberties Union, Reporters Committee for Freedom of the Press, and the Motion Picture Association of America. Marcia Coyle can be contacted at [email protected].

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