WASHINGTON — Several Supreme Court justices strongly questioned during an animated argument Tuesday whether California’s attempt to bar the sale of violent video games to minors could possibly meet constitutional muster.
But others noted in detail the graphic and sadistic nature of some of the games and wondered how it could be argued that a state could do nothing to keep such material out of the hands of young people. The court will eventually decide whether video games are protected forms of artistic expression or obscene material that should be kept from minors.
A majority of justices appeared to have major reservations about California’s law. It would prohibit the sale or rental to anyone under 18 of a video that allows a player the option of “killing, maiming, dismembering or sexually assaulting an image of a human being” and has no serious artistic or literary value and appeals to a “deviant or morbid interest.”
Justice Antonin Scalia led the aggressive questioning of Zackery Morazzini, a deputy California attorney general. Scalia said that violence in literature was at least as old as Grimm’s fairy tales and that it has always been understood that the First Amendment protects depictions of violence.
When Justice Ruth Bader Ginsburg questioned who would decide whether a video was deemed deviantly violent or simply violent, Scalia suggested: “You might call it the California Office of Censorship.”
Morazzini said California’s interest was in helping parents keep some images from their children. He cited studies that have shown videos to be different from other media in that the player is actually involved in directing the violence depicted on the screen.
But other justices wondered where the line would be drawn. “Could you get rid of rap music?” Justice Sonia Sotomayor asked.
Justice Elena Kagan appeared skeptical of the idea that playing the games led to violent behavior, estimating that most of the Supreme Court clerks probably grew up playing the “iconic” video game “Mortal Kombat.”
Paul Smith, attorney for the Entertainment Merchants Association, said the industry has already acted to keep the most violent games from reaching children, through labeling and parental controls on the machines that play the games.
