What the case to the Supreme Court

Reporting from Washington and Los Angeles —

One version of the video game "Postal 2" features an easily angered "postal guy" with dark glasses and a high-powered rifle. He wanders through town killing everyone he sees, leaving them bloody and mutilated. A trip to the library turns into carnage of mass shootings and blazing fires.

Another features young girls being struck by a shovel as they beg for mercy. The player can then pour gasoline over them, set them on fire and urinate on them.


Despite admittedly being disturbed by what he saw in "Postal 2," a federal judge struck down, on free-speech grounds, a California law that would forbid the sale or rental of such grossly violent video games to those younger than 18.

On Tuesday, when much of the nation is focused on the midterm elections to Congress, the Supreme Court will hear California's appeal and debate whether the states can restrict the sale of violent games to children and teenagers.

Video games, immensely popular with children and teens, now reach into two-thirds of American households, according to the video game industry. Many games put players into a fantasy drama of good versus evil.

The state's lawyers have argued that the games are getting ever more realistic in their graphics and sound, and that they can immerse the young in an evil world of intense violence, torture, burning and mayhem.

They also cited research that found a link between regular viewing of violent games and feelings of aggression.

The California law defines a "violent video game" as one that involves "killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that "appeals to a deviant or morbid interest" and has no "serious literary, artistic, political or scientific value." Violators would face a $1,000 fine. Parents, of course, would be free to purchase such a game for a child.

Industry lawyers said this definition was not clear.

It is "very vague, and it's impossible to tell which games it would apply to and which it would not," argued Ken Doroshow, general counsel for the Entertainment Software Assn., a trade organization representing game publishers.

"For example, it covers games that have a 'morbid interest to minors.' What does that mean? By a 17-year-old? By a 5-year-old? The statute doesn't say," he said.

The state also relied on a 1968 Supreme Court decision that said states may restrict the sale of pornography to minors, even if the same material were protected as free speech for adults.

If the 1st Amendment permits restricting the sale of Hustler magazine to teenagers, why can't sales of "morbidly" violent video games be restricted as well, the state's lawyers asked.

"I'm a big believer in the 1st Amendment, but this is a narrow issue involving sales. We regulate the sale of alcohol and cigarettes to kids because it's in their best interest. Parents need some help," said Jim Steyer, founder of nonprofit Common Sense Media in San Francisco and a leading champion of the law.

Defenders of the video games called the state's attempted crackdown the "latest in a long history of overreactions to expressive new media." From comic books and dime-store crime novels to movies, rock music and the Internet, each new media triggered fears that teenagers would be dreadfully harmed, they argued.

The industry also said its rating system warns parents and retailers about games that are inappropriate for minors.

Media lawyers also worry that a ruling upholding state regulation of video games could open the door to regulating other media.

"Rather than run afoul of the law, the creators will self-censor," Doroshow said. "This is what the 1st Amendment is designed to protect against — a chilling effect on speech."

The case is being closely watched by entertainment and media companies that fear they might be next.

The Motion Picture Assn. of America, in an amicus brief to the Supreme Court, warned that the law would have "a dramatic chilling effect on the motion picture industry" if it was deemed constitutional by the court.

"If the court's reasoning is not confined to the particular medium of video games, state and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures," the brief stated.

Attorneys for 11 states — including Illinois, Florida, Connecticut, Maryland and Virginia — joined in support of California, indicating they would consider similar laws if California's is upheld.

In recent years, as lawmakers began to move toward regulating violent or explicit games, the industry aggressively stepped up its voluntary system of ratings and recruited major retailers such as Wal-Mart and Toys R Us to help enforce them by requiring purchasers of games labeled Mature to show proof of age.

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Last year, the industry took in an estimated $10 billion from the sales of video games, according to Wedbush Securities. The figure does not include sales of games downloaded from the Internet, which the California law does not govern.

Lawyers for the video game industry, acknowledging that movies are a major source for games, could not resist trying to tweak Gov. Arnold Schwarzenegger, their main adversary in the appeal, Schwarzenegger vs. Entertainment Merchants Assn.

"Several video games have been based on 'The Terminator,' " they said. They pointed out that the film was part of "a popular movie series in which petitioner Schwarzenegger portrayed an android-like creature sent back in time as part of a future war between humans and computers."