A federal ruling that blocks California's ban on the sale of violent video games to children is the latest setback to lawmakers trying to clean up a medium that is increasingly graphic -- and just as popular.
The preliminary injunction granted late Wednesday by U.S. District Judge Ronald M. Whyte delays implementation of a measure that would make it a crime to rent or sell games that "depict serious injury to human beings in a manner that is especially heinous, atrocious or cruel" to people younger than 18.
The law, written by Assemblyman Leland Yee (D-San Francisco) and signed in October by Gov. Arnold Schwarzenegger, was to take effect Jan. 1. Whyte, whose courtroom is in San Jose, blocked that until lawyers for the game industry and the state can argue whether the sales ban tramples free-speech rights.
In granting the injunction sought by the Entertainment Software Assn. and the Video Software Dealers Assn., Whyte concluded that the trade groups "are likely to succeed on the merits of their claim that the act violates the 1st Amendment."
The ruling comes as the $25-billion global game industry faces sharp criticism for sex and violence in some of its titles. Much of the furor has focused on "Grand Theft Auto: San Andreas," a game that allows players to shoot cops, run over pedestrians and have sex with prostitutes.
Legislative efforts to keep violent games away from minors have faced constitutional challenges as backers try to extend some of the same laws restricting access to pornography to violent material. Courts have been unwilling to endorse that reasoning.
"This is not a surprising result," said Kurt Opsahl, staff attorney with civil liberties group Electronic Frontier Foundation. "It brings into question whether this is really the best use of the state's resources to constantly put up these clearly unconstitutional laws, only to have them challenged and thrown out.... It does seem to be one in this series of: law passes, gets challenged, gets struck down. Rinse, lather, repeat."
Game makers noted Thursday that Whyte's decision marked the sixth time that a judge had ruled in their favor on sales bans. Most recently, a similar law in Illinois was blocked this month.
Nevertheless, Sen. Hillary Rodham Clinton (D-N.Y.) last week joined Sen. Joe Lieberman (D-Conn.) and Sen. Evan Bayh (D-Ind.) to introduce a bill to restrict sales to minors. They joined a chorus of critics who say game violence differs from other forms of media violence because games are interactive.
Studies on the effects of video games have been inconclusive or contradictory -- and have provided fodder for both sides.
"The science indicates that the participation and identification with the violence has a greater effect than simply passively watching violence," said Kevin Saunders, a law professor at Michigan State University and author of "Saving Our Children from the First Amendment." "If not now, sooner or later the science will get to the point where courts will recognize it justifies the statutes."
Whyte, however, wrote in his ruling that California lawyers appeared unlikely to be able to prove a causal relationship between violent video games and violent behavior. Even if they could, he added, "it is uncertain that ... the 1st Amendment allows a state to restrict access to violent video games, even for those under 18 years of age."
Schwarzenegger spokesman Vince Sollitto predicted that California would prevail in what he and other state officials warned could be a lengthy court battle over the measure.
"The court will have a full opportunity to understand why the governor and the legislature believe the state has a compelling interest in protecting children from potential harm from exposure to extremely violent video games," Sollitto said.
A spokesman for California Atty. Gen. Bill Lockyer said the issue ultimately might be decided by the U.S. Supreme Court.
Although video game sales have grown rapidly in recent years, they have cooled considerably in 2005 as game players await a new batch of consoles from Microsoft Corp., Sony Corp. and Nintendo Co. Market researcher NPD this month said November game sales were down 18% from the same period in 2004.
Complaints about violence have existed since the earliest days of video games, but technological advances in recent years have made games more realistic and involved. Game makers counter critics by saying parents should take greater responsibility in determining what games their children are allowed to play.
The industry follows a voluntary rating system administered by the Entertainment Software Rating Board. Many retailers refuse to sell "Mature"-rated games to children under 17. In 2004, 16% of computer and video games sold were rated "Mature," 53% were rated "Everyone" and 30% were "Teens."
Yee's law would require exceptionally violent games to carry a label with the number "18." Publishers that fail to mark their games could face fines of $1,000 for each violation, as could retailers that rent or sell such games, if properly labeled, to children.
Game publishers complained that the definitions in Yee's law were too vague and noted that new technology gave parents more control than ever to manage what their children see on screen.
Microsoft's new video game console, Xbox 360, for example, includes a "family setting" feature that allows parents to grant or restrict access to games based on the ESRB rating system.
"Technology will wipe away this issue in the next five years," said Jeff Brown, a spokesman for Electronic Arts Inc., the world's largest independent video game publisher. "The new consoles from Sony, Microsoft and Nintendo will all have parental controls so that game systems are far beyond television and DVDs in the ability they give to parents to restrict content."