9th Circuit Holds California Video Games Statute Unconstitutional

February 20, 2009. The U.S. Court of Appeals (9thCir) issued its opinion [30 pages in PDF] in Video Software Dealers Association v. Schwarzenegger, holding that the state of California's statute that mandates labeling of violent video games violates the First Amendment.

In 2005, the California legislature enacted, and the governor signed, an act that regulates the sale of a "violent video game", which is defined as games that include "killing, maiming, dismembering, or sexually assaulting an image of a human being".

The act imposes a labeling requirement -- a two inch by two inch black and white label on the front of the game's packaging.

This act is codified at California Civil Code §§ 1746-1746.5.

The Video Software Dealers Association (VSDA), which is now the Entertainment Merchant Association (EMA), and the Entertainment Software Association (ESA) filed a complaint in the U.S. District Court (NDCal) against Arnold Schwarzenegger, in his capacity of Governor of California, and others, challenging the constitutionality of the act.

The District Court held the act unconstitutional. California brought the present appeal.

The Court of Appeals affirmed.

It held that the act is a "presumptively invalid content-based restriction on speech", and that it subject to the "strict scrutiny" standard of review, rather than the "variable obscenity" standard articulated by the Supreme Court in its 1968 opinion in Ginsberg v. New York, 390 U.S. 629.

The Court of Appeals held that "the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests."

It also held that "the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion."

The Court of Appeals did not rule on other grounds for challenging the statute, including void for vagueness and equal protection.

Michael Gallagher (at left), head of the ESA, stated in a release that "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. In the end, common sense prevailed with the court determining that, after exhaustive review, video games do not cause psychological or neurological harm to minors. And, that the ESRB rating system, educational campaigns and parental controls are the best tools for parents to help control what their children play."

This case is Video Software Dealers Association and Entertainment Software Association v. Arnold Schwarzenegger, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-16620, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-05-04188-RMW.

Judge Consuelo Callahan wrote the opinion of the Court of Appeals, in which Judges Alex Kozinski and Sidney Thomas joined.