Violent Children’s Computer Games Protected by First Amendment

On June 27, 2011, the Supreme Court struck down a California statute that prohibited the sale of violent computer games to children as a violation of free speech under the First Amendment. The law would have imposed a fine of $1,000 per incident for the sale of violent computer games to children under the age of 18. The California law defined a violent game as ones that gave options to the player which include “killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that appealed to a child’s “deviant or morbid interests.” The law would not have applied to games that have “serious literary, artistic, political or scientific value.”

Justice Antonin Scalia wrote for the majority: “Like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”

Interestingly, Justice Scalia noted that violence as a subject matter in media has never been subject to government regulation. He noted that the plots of Grimm’s Fairly Tales, Snow White, Cinderella and Hansel and Gretel are filled with violence, as well as are children’s cartoons. Generally, the only type of speech that is not protected by the First Amendment is incitement, obscenity and fighting words. The court did not see any compelling basis for adding a new category for protected speech.

The game industry is worth more than $10 billion a year. So the real winners of this decision are industry, not the morals of our children. The decision may be correct. However, the manner in which computer games created today can powerfully affect the psyche of a child, and the long term impact on the child and our society at large, is not a consequence that can be ignored.


By William S. Galkin, Esq. | June 30, 2011



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William Galkin manages GalkinLaw. Mr. Galkin has dedicated his legal practice to representing Internet, e-commerce, computer technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to both startup and multinational corporations on their core commercial transactions.


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