Now, I'm not an advocate for violent video games, although admittedly I have spent many a night trying to figure out a "finishing move" on my opponent in Mortal Kombat. Similarly, I'm not a fan of allowing minors to purchase violent video games.
But I am a fan of the First Amendment, and California's law deserved to be defeated. May it rest in peace—perpetually.
 
The law, signed back in 2005 by Governor "I-Used-To-Make-Money-On-The-Sale-Of-Violent-Media-And-Now-I-Restrict-Such-Sales" Schwarzenegger, provided that a person could "not sell or rent a video game that has been labeled as a violent video game to a minor." The law defined a "violent video game" as one in which "the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being", if those acts are depicted in a manner that rises to the level of obscenity.
 
Oh, one more thing: the law also defined a "violent video game" as one that "enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim."
 
Sounds ok, right? I mean, who could possibly be against this law? 
 
Well, here's the rub: the law is what we lawyers call a "content-based regulation". (Non-lawyers call it that too, but I wanted to sound lawyerly for a moment.) Content-based regulations are subject to the highest level of scrutiny by the courts—something called "strict scrutiny." Put another way: if the legislature doesn't have a supremely good reason for regulating the content of speech, then it cannot do so. In fact, content-based regulations are so antithetical to our way of life, they are presumed to be invalid unless it can be shown why they should be valid. (Yes, it's THAT serious...)
 
So here are the arguments:
 
[State of California]: We are trying to prevent violent, aggressive and anti-social behavior, and we are trying to prevent psychological or neurological harm to minors who play violent video games. (By the way, I didn't make that up. That's what the California legislature initially offered as its motivation for the law. Later on, the State limited its motivation to simply protecting "the physical and psychological well-being of children."
 
[Opposition]: Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it. (I didn't make that up either—that is a direct quote from a federal court decision in a case called American Amusement Machine Ass'n v. Kendrick. If you have a moment, read that decision HERE. Great stuff.)
 
[State of California]: But, the children.....
 
[Opposition]: The children will be fine. We need better parenting. We need better education. We need to stop worrying about how a video game might impact our children, and start thinking about how education begins in the home. And by the way, there are an infinite number of stimuli that can cause aggression or aggressive thoughts in a person—-you just happened to pick one. Are we going to restrict all such stimuli? 
 
[State of California]: But, the children...
 
[Opposition]: There are ways we can prevent minors from easily getting these materials aside from allowing the government to make the decision for us. How about a voluntary rating system (which, by the way, has been used successfully in the software and movie industries for decades)? Even better—how about using the password-protected parental controls on the gaming systems themselves, which allow parents to set age-appropriate filters on the gaming consoles and block violent or inappropriate content?
 
Or, of course, we could let the government decide what's appropriate for our kids to view on their Xboxes, or Playstations or Wii consoles. And then we can apply the law to movies. Then books. Then speech.
 
Get the idea? I knew you would.
 
The bottom line is this: as long as there are reasonable alternatives to government-imposed restrictions on speech, then those alternatives must be used, and laws that delve into the content of speech must be viewed with great suspicion, and avoided if at all reasonably possible.
 
Remember, the vehicle by which the content is delivered is irrelevant to this issue. Today we are talking about video games—but that might not always be the case.
 
And I believe the U.S. Supreme Court will feel the same way.