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Saturday, February 21, 2009

Ninth Circuit rules ban on video game sales to minors unconstitutional
Steve Czajkowski at 11:47 AM ET

[JURIST] A three judge panel for the US Court of Appeals for the Ninth Circuit [official website] on Friday unanimously upheld [opinion text, PDF] a US District Court ruling [opinion, PDF; JURIST report] that a California law [text, PDF] banning sales of video games to minors is unconstitutional because it is a violation of First Amendment free speech rights. In Video Software Dealers Assoc. v. Schwarzenegger, the appellants, a group of California state officials, argued for a reduced standard of review based on US Supreme Court [official website; JURIST news archive] precedent in Ginsberg v. New York [opinion text]. The Ninth Circuit refused to apply the lower “variable obscenity” standard from Ginsberg instead of strict scrutiny based on the differences between sexually explicit content, which was the subject in Ginsberg, and violent content. In its opinion the court also found that the appellants did not meet the strict scrutiny standard by presenting a compelling state interest which was narrowly tailored:

In sum, the evidence presented by the State does not support the Legislature’s purported interest in preventing psychological or neurological harm... [n]one of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable. In fact, some of the studies caution against inferring causation. Although we do not require the State to demonstrate a “scientific certainty,” the State must come forward with more than it has. As a result, the State has not met its burden to demonstrate a compelling interest.

Instead of focusing its argument on the possibility of less restrictive means, the State obscures the analysis by focusing on the “most effective” means, which it asserts is the one thousand dollar penalty imposed for each violation. Further, the State does not acknowledge the possibility that an enhanced education campaign about the ESRB rating system directed at retailers and parents would help achieve government interests. Even assuming that the State’s interests in enacting the Act are sufficient, the State has not demonstrated why less restrictive means would not forward its interests. The Act, therefore, is not narrowly tailored.
The bill, originally signed into law by California Governor Arnold Schwarzenegger in October 2005, prohibited the sale or rental of violent video games to minors under the age of 17, and required retailers to label violent games. In December 2005, US District Court Judge Ronald Whyte issued a temporary injunction [JURIST report] against the enforcement of the law after the Entertainment Software Association (ESA) and the Video Software Dealers Association (VSDA) [trade websites] filed a lawsuit [JURIST report; EMA backgrounder]. Judges have struck down similar laws as unconstitutional in Michigan, Illinois, Minnesota, and Louisiana [JURIST reports].





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