CA Supreme Court Brief Compares Restricted Violent Games to Sexual Obscenity

As the November 2 date for oral arguments in the Supreme Court review of Schwarzenegger vs. Entertainment Merchants Association approaches, the state of California has filed a reply brief [PDF] comparing the content they're seeking to restrict to obscene sexual content. The brief argues that the restrictions in the 2005 California law -- which apply to "patently offensive" content that appeals to a "deviant or morbid interest" in minors and contains "killing, maiming, dismembering, or sexually assaulting an image of a human being" -- are meant for "obscene violence" that should be subject to the same kinds of sales restrictions applied to sexual obscenity. "Although the Act replaces 'prurient' interest in sex with 'deviant' interest in violence, the social interests served through the use of these terms are the same when a state acts to protect minors," the brief argues. The state goes on to argue that violent content like that in the Bible, Harry Potter, and Brothers Grimm fairy tales would not be restricted under the act because of its "redeeming artistic and social value." "So long as the video games [game makers] import into or distribute within California can reasonably be said to meet a national minimum for socially redeeming value for minors, no labeling is required under the Act," the brief says. The brief explicitly mentions Manhunt and Mad World as two titles that would decidedly not meet such a test. "While there is certainly a level of violence available in video games that is not patently offensive, appealing to a minor’s deviant interest, it should be beyond argument that there is also a level that is." Halo 3 is also briefly mentioned in the brief as an example of a violent game that the FTC found was potentially marketed to minors through promotions with Burger King, 7-Eleven and Mountain Dew. The brief also takes issue with the argument that First Amendment protections for producing content necessarily extends to the right to sell that content to minors without restriction. "Under the rule of law proposed by respondents, they would have a constitutional right to sell minors an offensively violent video game, over the objection of a parent, even though their own rating system recommends they refrain from doing so," the state writes. The reply brief comes in response to an EMA/ESA brief filed in September and in addition to the state's initial brief in the case, which was filed in July.