And the notion of protected speech: Video games
“Video games are a new medium, and while people are used to scary stuff in the movies, they aren’t as used to having scary stuff in interactive media, so there is political value in passing these laws even if they are ultimately rejected by the courts,” said Paul M. Smith, a partner in the Jenner & Block law firm, which represents the game industry. “I think it’s fair to say that a lot of people who passed these laws knew they were unconstitutional, and they did it anyway.”
Put simply, the United States Supreme Court has interpreted the Constitution as allowing states broad leeway in regulating minors’ access to sexually explicit material. That is why it is illegal around the country to sell pornography to children. Courts have not, however, said that states have a similar right to regulate media based on violence. Most of the city and state video game laws that have been struck down in recent years have tried to ban the sale or rental of certain violent games to minors. In many of those cases, states and cities have tried to translate the legal rules for pornography into a new system for regulating violent media.
“One of our major arguments was that when it comes to minors, violence should be treated similarly to sexually explicit material,” said Zackery P. Morazzini, the California deputy attorney general who argued the recent case for the state. “We allow states to protect children from sexually explicit material, so to us it is a logical extension to take that lesser obscenity standard and apply that in the context of violent media.”
The United States Supreme Court has not taken up the matter, but judges appear to have taken a dim view of that approach.