The Supreme Court has agreed to rule on the constitutionality of a California law banning the sale or rental of violent video games to minors. In Schwarzenegger v. Video Software Dealers Association, California has asked the Court to extend the same “variable obscenity” standard to violent content that has been used in cases involving laws prohibiting minors from accessing obscene material. The statute at issue, Cal. Civ. Code §§ 1746-1746.5, prohibits the sale or rental of a violent video game to anyone under 18. Violators are subject to a civil penalty of up to $1,000. And all violent video games must carry a 2“ x 2“ solid white “18” label on the face of the package.
The statute contains two definitions for a “violent video game.” The first definition, defined in § 1746(d)(1)(A), is a modified version of the the three-part Miller test for obscenity (notably, among other significant alterations, the statute omits a “community standards” requirement in the first description under 1746(d)(1)(A)):
(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
(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.
The second definition, defined in § 1746(d)(1)(B)-(d)(3), borrows language from the federal death penalty jury instructions. California has since conceded that this alternate definition of “violent video game” is unconstitutional because it does not include an exception for material that has a redeeming value to 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
(2) For purposes of this subdivision, the following definitions
(A) “Cruel” means that the player intends to virtually inflict a
high degree of pain by torture or serious physical abuse of the
victim in addition to killing the victim.
(B) “Depraved” means that the player relishes the virtual killing
or shows indifference to the suffering of the victim, as evidenced by
torture or serious physical abuse of the victim.
(C) “Heinous” means shockingly atrocious. For the killing depicted
in a video game to be heinous, it must involve additional acts of
torture or serious physical abuse of the victim as set apart from
(D) “Serious physical abuse” means a significant or considerable
amount of injury or damage to the victim’s body which involves a
substantial risk of death, unconsciousness, extreme physical pain,
substantial disfigurement, or substantial impairment of the function
of a bodily member, organ, or mental faculty. Serious physical abuse,
unlike torture, does not require that the victim be conscious of the
abuse at the time it is inflicted. However, the player must
specifically intend the abuse apart from the killing.
(E) “Torture” includes mental as well as physical abuse of the
victim. In either case, the virtual victim must be conscious of the
abuse at the time it is inflicted; and the player must specifically
intend to virtually inflict severe mental or physical pain or
suffering upon the victim, apart from killing the victim.
(3) Pertinent factors in determining whether a killing depicted in
a video game is especially heinous, cruel, or depraved include
infliction of gratuitous violence upon the victim beyond that
necessary to commit the killing, needless mutilation of the victim’s
body, and helplessness of the victim.
Both the Ninth Circuit and district court refused to apply the “variable obscenity” standard in this case, and held the statute unconstitutional. The Ninth Circuit said that the state failed to produce enough evidence to show that video games cause physical or neurological harm to minors, and the Act did not use the least restrictive means to further the state’s purported interests.
SCOTUSblog has a nice overview of the case.