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United States: Ninth Circuit Strikes Down California’s Violent Video Game Law

(Mar. 16, 2009) The United States Court of Appeals for the Ninth Circuit has held that a California law imposing restrictions on “violent video games” violates the First and Fourteenth Amendments of the U.S. Constitution.

Passed in 2005, the law forbade selling or renting violent video games to minors, and required them to be marked with large, conspicuous labels. The law defined violent video games as those that feature the killing, maiming, dismembering, or sexual assault of images of human beings and that appeal to a deviant or morbid interest of minors; offend prevailing community standards regarding suitable material for children; and lack serious literary, artistic, or political value.

California argued that the court's review should be under the less restrictive “rational basis” test for constitutionality, which applies to restrictions on obscene material. The Ninth Circuit rejected California's argument, ruling that the use of the rational basis test for obscenity is limited to sexually explicit material, not violent content. The court instead employed the more restrictive “strict scrutiny” standard, which requires a law to be “narrowly tailored to promote a compelling government interest” and the least restrictive means to achieve that interest. It ruled that under this standard, the law is unconstitutional. It found that the state had not provided sufficient evidence of a causal link between violent video games and harm to minors to prove a compelling government interest. It also found that less restrictive means, such as parental controls and education campaigns, were available to protect minors from harm. (Video Software Dealers Association v. Schwarzenegger, No. 07-16620 (9th Cir. Feb. 20, 2009), available at http://www.ca9.uscourts.gov/datastore/opinions/2009/02/20/0716620.pdf.)