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WASHINGTON — States cannot ban the sale or rental of ultraviolent video games to children, the Supreme Court ruled Monday, rejecting such limits as a violation of young people’s First Amendment rights and leaving it up to parents and the multibillion-dollar gaming industry to decide what kids can buy.
The high court, on a 7-2 vote, threw out California’s 2005 law covering games sold or rented to those under 18, calling it an unconstitutional violation of free-speech rights. Writing for the majority, Justice Antonin Scalia, said, “Even where the protection of children is the object, the constitutional limits on governmental action apply.”
Scalia, who pointed out the violence in a number of children’s fairy tales, said that while states have legitimate power to protect children from harm, “that does not include a free-floating power to restrict the ideas to which children may be exposed.”
Justices Stephen Breyer and Clarence Thomas dissented from the decision, with Breyer saying it makes no sense to legally block children’s access to pornography yet allow them to buy or rent brutally violent video games.
“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Breyer said.
Video games, said Scalia’s majority opinion, fall into the same category as books, plays and movies as entertainment that “communicates ideas — and even social messages” deserving of First Amendment free-speech protection. And non-obscene speech “cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” he said.
This decision follows the court’s recent movement on First Amendment cases, with the justices throwing out attempts to ban animal cruelty videos, protests at military funerals and political speech by businesses.
The court will test those limits again next session when it takes up a new case involving government’s effort to protect children from what they might see and hear. The justices agreed to review appeals court rulings that threw out Federal Communications Commission rules against the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of ABC’s “NYPD Blue.”
The decision to hear the FCC case was one of the last the full court made this session. Before leaving on their annual summer break on Monday, the justices also:
• Voted 5-4 to strike down a provision of a campaign financing system in Arizona that gives extra cash to publicly funded candidates who face privately funded rivals and independent groups.
• Agreed to hear arguments in the fall or winter on whether police need a warrant before using a global positioning system device to track a suspect’s movements.
• Refused to hear an appeal from former detainees at the Abu Ghraib prison in Iraq who wanted to sue defense contractors over claims of abuse.
More than 46 million American households have at least one video-game system, with the industry bringing in at least $18 billion in 2010. The industry has set up its own rating system to warn parents which video games are appropriate for which ages, with the rating “M’’ placed on games that are considered to be especially violent and only for mature adults.