Another factor, which was mentioned during arguments but didn’t receive nearly the attention it deserved, is how video games are different from books, music and movies. In those, the child is a passive recipient. In video games, the child is the actor, taking part in what’s happening, imagining himself being a part of it.
Should the Court find that these video games are nonetheless protected speech, this law would still be upheld if it satisfies “strict scrutiny,” a demanding legal standard under which the law must be shown to be narrowly tailored to achieve a compelling public interest.
Justice Stephen Breyer sided with Roberts and Alito, all of whom were asking if there’s nothing a state can do to limit a child’s access to such video games. They emphasized that it’s not a question of whether the games are to be banned; it’s just that the parent has to buy the video and give it to the child. For example, Roberts asked, could the law at least require that the games be put on the shelf behind the checkout counter, so that the sales clerk has to get it and can check the age of the purchaser?
The video makers’ lawyer argued that any restriction would be unconstitutional because it censors free speech. And some of the justices agreed, wondering how the government could define an unacceptable game. How much of role can government play in determining access to things that some people find disturbing, but others find entertaining? (This side of the argument was helped by the fact that California’s lawyer was not adequately prepared, being asked a number of foreseeable questions for which he lacked answers.)
It’s unclear from oral argument which way the votes will stack up in this case. A decision should come down early next year.