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Wednesday, April 7, 2010 as of 11:14 AM ET

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Lee Ross

Supreme Court

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Justices Not Keen on Violent Video Game Law

November 2, 2010 - 12:14 PM | by: Lee Ross

A skeptical Supreme Court showed little interest Tuesday in upholding a California law banning the sale of violent video games to minors. The law has already been invalidated by a pair of lower federal courts and the justices appeared ready to follow suit.

Tuesday’s lively hour-long arguments focused extensively on the breadth of the state law prohibiting the sale or rental of video games that “appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors.”

Critics of the law, including the trade association representing the video game industry, believe the law is too broad and violates First Amendment speech protections.

In its effort to preserve the measure, California attempted to link its statute to a landmark 1968 Supreme Court decision allowing for the regulation of obscene sexual material to children. Violent video games are “no less harmful to the development of minors,” lawyer Zackery Morazzini, representing California, told the court.

That contention didn’t sit well with a number of justices who noted the country’s longstanding interest in regulating sexual material and not violence. Justice Anthony Kennedy said a societal consensus has been formed about the offensiveness of certain sexual material and that the state was asking the court to create an “entirely new area [of First Amendment restriction] with no consensus.” Kennedy flatly told Morazzini that he thought the law was vague.

“Where’s the tradition of regulating violence?” Justice Sonia Sotomayor asked.

Several justices expressed concern about a slippery slope of speech regulations if they upheld the California law. “What’s next after this?” Justice Antonin Scalia wondered.

“Can the legislature regulate Bugs Bunny?” Sotomayor asked before also speculating about the possibility of the state cracking down on rap music–each having been criticized for supposedly violent themes. It didn’t appear as if she favored banning either. Other justices asked if movies could also be banned.

Justice Elena Kagan asked about a possible ban of the popular game “Mortal Kombat” that she speculated half of the Supreme Court clerks have played.

California lawmakers passed the 2005 measure in an effort to help parents keep violent video games away from children. The state cites studies showing a linkage between minors who play the games and later violent activities.

But determining what games cross the threshold of permissibility proved to be a difficult task. “What’s the difference between deviant violence and normal violence,” Scalia asked. He later expressed fear that the law would inhibit video game creators from developing new games out of fear of government action.

While the fate of the California law appears to be certain what’s not as clear is if the high court will issue a ruling categorically saying that video games with violent content—even if its of a “deviant or morbid interest”–can never be regulated.

At least three justices seemed open to the idea that California or another state could write a narrower law to prevent the sale of violent video games to minors. Justice Stephen Breyer wondered what sense it makes to ban a 13-year-old from buying a magazine with nudity but to allow that same child to purchase a video game that includes scenes of gratuitous torture or other forms of extreme violence.

Paul Smith, the lawyer defending the industry, likened the attacks on video games to those of generations past going after the supposed harm caused by movies and comic books. But Chief Justice John Roberts and Justice Samuel Alito each noted the more active participation necessary for a video game user than simply watching a movie or reading a comic book.

A decision isn’t expected until next year.