California's violent video game ban law ruled unconstitutional by US Court of Appeals

February 22, 2009 A U.S. Court of Appeals on Friday has declared, the California "ultraviolent video games law" that sought to ban the sale or rental of violent  to minors.

has ruled that the 2005 statewide ban, which has yet to be enforced, violates minors' rights under the US Constitution's First and 14th amendment because even the most graphic on-screen mayhem, video game content represents free speech that cannot be censored without proper justification.

The Court has ruled that there’s no convincing evidence it causes psychological damage to young people. The 3-0 judgment has affirmed an earlier ruling by a U.S. District Court, which barred enforcement of the law on the basis that it was "unduly restrictive" and "used overly broad definitions," and that the state failed to show that the limitations on violent video games would actually protect children.

In 2005, (余胤良), a  (in District 8 which includes the western half of San Francisco and most of ),  of the Assembly (D-San Francisco/),  introduced  which barred "ultra-violent" video games from s under the age of  in  and mandated the application of  ratings for video games.

"California Assembly Bills 1792 & 1793" were commonly called the " video games bills" or simply "video game ban" bills. Bill 1792 banned the sales of such video games while Bill 1793 required signs explaining the regulations on said games to be placed where such were sold. Both bills were passed by the Assembly and signed by Governor into law (AB 1179) on October 7, 2005.

Explicitly, these two bills provided that:


 * AB 1792 will place ultra-violent video games into the "" portion of the, which criminalizes the sale of said material to a minor.


 * AB 1793 will require retailers to place M-rated games separate from other games intended for children, and will also require retailers to display signage explaining the ESRB rating system.

Yee, a former child psychologist has such games as ' and ', and opposes the U.S. Army's Global Gaming League.

On October 17, 2005, before the effectivity of the challenged Act, plaintiffs, the international trade association dedicated to advancing the interests of the $32 billion  and , a 1994 US  of the  have filed lawsuit (D.C. No. CV-05-04188-RMW) against the defendants Governor Arnold Schwarzenegger, , Edmund G. Brown, Santa Clara County District Attorney George Kennedy, City Attorney for the City of San Jose, Richard Doyle, and County Counsel for the County of Santa Clara, Ann Miller Ravel. [[File:Paul_Cappuccio_and_Judge_Alex_Kozinski_(2319191300).jpg|left|thumb|275px|Paul Cappuccio EVP and General Counsel of and Judge  of the

Plaintiffs' counsel, 's has filed a  to invalidate the newly-enacted  sections 1746-1746.5 (the “Act”), on the grounds that it allegedly violated 42  § 1983 and the  and.

Plaintiffs have submitted that "the Act unconstitutionally curtailed on its face based on content regulation and the labeling requirement, was unconstitutionally vague, and violated equal protection. California's restrictions could open the door for states to limit minors' access to other material under the guise of protecting children."

By December 2005, both bills had been struck down as unconstitutional, by, District Judge, Presiding in the in , thereby preventing either from going into effect on January 1, 2006.

Judge Whyte has granted plaintiffs’ motion for a in "Video Software Dealers Ass’n v. Schwarzenegger," 401  1034 (N.D. Cal. 2005), and cross-motions for, in "Video Software Dealers Ass’n v. Schwarzenegger," No. C-05-04188, slip op. (N.D. Cal. Aug. 6, 2007).

Similar bills were subsequently filed in such states as Illinois, Oklahoma, Minnesota, Michigan and Louisiana have been ruled to be unconstitutional by federal courts on First Amendment grounds, according to Sean Bersell, a spokesman for the Entertainment Merchants Association.

The defendants, in the instant Case No. 07-16620, have timely appealed the. On October 29, 2008, the appealed case was argued and submitted to the 's, hence, the promulgation of the instant 30 pages decision (No. 07-16620; D.C. No. CV-05-04188-RMW) by , Chief Judge, and (who wrote the court's opinion), Judges.

In the ban’s defense, for the State of California, Zackery Morazzini has contended that "if governments restrict the sale of pornography to minors, it should also create a separate category for ultra-violent video games." ,, has also argued that "the Court should analyze the Act’s restrictions under what has been called the 'variable obscenity' or 'obscenity as to minors' standard first mentioned in Ginsberg, 390 U.S. 629. The Court’s reasoning in Ginsberg that a state could prohibit the sale of sexually-explicit material to minors that it could not ban from distribution to adults should be extended to materials containing violence."

The "Fallo" or dispositive portion of the in question goes as follows:

"We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder," said the law's author, Sen. Leland Yee, announcing he wanted, the current and a former  of the State of California, to appeal the decision to the.

"Letting the industry police itself is like letting kids sign their own report cards and that a self regulating system simply doesn't work. I've always contended that the ... law the governor signed was a good one for protecting children from the harm from playing these ultra-violent video games. I've always felt it would end up in the Supreme Court," Sen. Yee explained. "In fact, the high court recently agreed, in (2005), that we need to treat children differently in the eyes of the law due to brain development," he added.

According to, president of the , plaintiff, the Court's ruling has stressed that parents, with assistance from the industry, are the ones who should control what games their children play. "This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time and state resources," Gallagher said in a statement.

Entertainment Software Association members include, , , , America, and  Software, the maker of  games.

Judge Callahan has also reprimanded state lawyers for having failed to show any reasonable alternatives to an outright statewide ban against the ultra-violent video games. "Ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content," said Bo Andersen, president and chief executive of the.

Andersen continues, "retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80 percent enforcement rate, and retailers will continue to work to increase enforcement rates even further; the court has correctly noted that the state cannot simply dismiss these efforts."

California was already forced to pay $282,794 to the ESA for attorneys' fees, money that would've helped with the state's current budget difficulties. Andersen has urged California government officials not to appeal the case. "The estimated $283,000 in taxpayer money spent by the state on this case is so far an 'ill-advised, and ultimately doomed, attempt at state-sponsored nannyism.' A voluntary ratings system already exists to avoid the state-sponsored nannyism of a ban," he explained.

"The governor believes strongly we have a responsibility to our children and our communities to protect against the effects of video games depicting ultra-violent actions," said Governor Schwarzenegger spokeswoman Camille Anderson adding the governor was reviewing Friday's decision. [[File:MikeGallagher.jpg|left|thumb|155px|, president of the

Deputy Attorney General Zackery Morazzini, the state's counsel in the appealed case, has stressed that "a law restricting sales of violent games is far more effective than industry self-policing, since the technological controls that the court cited as another alternative can be easily bypassed by any kid with an Internet connection."

According to Jim Steyer, Founder of Common Sense Media, a non-profit organization of 750,000 regular users dedicated to improving children’s media lives, researches have shown that playing these violent video games are detrimental for kids mental and physical health. “The health threat involved with kids playing such games is equivalent to smoking cigarettes,” Steyer said. “These violent video games are learning tools for our children and clearly result in more aggressive behavior,” said Randall Hagar, California Psychiatric Association’s Director of Government Affairs.

The 's data reveals that "nearly 70 percent of thirteen to sixteen year olds are able to purchase M-rated (Mature) video games, which are designed for adults; ninety-two percent of children play video or computer games, of which about forty percent are rated M, which are the fastest growing segment of the 10 billion-dollar video game industry; the top selling games reward players for killing police officers, maiming elderly persons, running over pedestrians and committing despicable acts of murder and torture upon women and racial minorities."