California Violent Video Game Law Held Unconstitutional,
by the Ninth Circuit in Video Software Dealers Ass'n v. Schwarzenegger. The statute barred selling or renting "violent video games" to minors, and defined violent video games this way:
(d)(1) "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:On appeal, California conceded that the subsection (B) definition is unconstitutional, and focused on (A), which essentially borrows the "obscene as to minors" test -- which was upheld by the Supreme Court, in a slightly different form, for sexually themed expression -- and tries to adapt it to violent video games. No dice, the court says (in my view, quite correctly, and consistently with generally similar decisions from the Second, Sixth, Seventh, and Eighth Circuits):
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
We decline the State's invitation to apply the variable obscenity standard from Ginsberg to the Act because we do not read Ginsberg as reaching beyond the context of restrictions on sexually-explicit materials or as creating an entirely new category of expression -- speech as to minors -- excepted from First Amendment protections. As the Act is a content based regulation, it is subject to strict scrutiny and is presumptively invalid. Under strict scrutiny, the State has not produced substantial evidence that supports the Legislature's conclusion that violent video games cause psychological or neurological harm to minors. Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the State's purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls.The court also struck down the requirement that "violent video games" be labeled with a prominent "18" label.