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Failed video-game law cost California $2 million

Published: Monday, February 20, 2012

Updated: Monday, February 20, 2012 12:02


SACRAMENTO, Calif. — Designed to protect children from video games of murder and mayhem, a California law that was passed six years ago but never took effect wound up costing the state nearly $2 million.

The final check for nearly a million dollars is expected to be written soon.

Arnold Schwarzenegger and Jerry Brown, governor and attorney general at the time, supported appealing to the U.S. Supreme Court despite the state's 2009 fiscal crisis and defeats in two lower courts.

"It was an important issue to the governor," said Andrea Hoch, who was Schwarzenegger's legal affairs secretary and now an appellate court judge. "It was something he felt strongly about."

The tactic backfired when the Supreme Court rejected the appeal, 7-2, forcing the state to pick up the video-game industry's legal costs.

"I think we felt the issue was so important that it warranted the costs associated with it," said Jim Humes, Brown's chief deputy at the time and now his executive secretary.

Humes said it is rare for California to appeal cases to the U.S. Supreme Court. Of tens of thousands of cases each year that the state is involved in, perhaps dozens are appealed, and the court grants review in just a few, he said.

California's law sought to crack down on children's purchases of interactive video games that allow them to re-enact killings at Columbine High School, for example, or to rape women, gun down minority groups or assassinate President John F. Kennedy.

Former San Francisco Democratic Assemblyman Leland Yee, now a senator, authored the law to fine stores $1,000 each time they sold or rented kids an interactive video game in which they could simulate murder, torture, cruelty or other heinous acts. His measure also required clear labeling of violent video games.

"I felt it was important that the state take an active role in protecting kids, because that's our responsibility," Yee said.

But the law never kept any child from buying any video game because a judge blocked its implementation in 2005, launching a long legal fight.

The Supreme Court ruled that violent video games are a form of free speech and that barring their sale, even to children, is a violation of the First Amendment.

"Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary," Justice Antonin Scalia wrote for the majority.

The United States has no history of protecting children from depictions of violence: Cinderella's evil stepsisters have their eyes picked out by doves, for example, and Hansel and Gretel kill their captor by baking her in the oven, Scalia noted.

Besides, studies cited by the state do not prove that violent video games cause minors to act aggressively, the high court concluded.

The pending pending $950,000 payment of opposing attorney fees is in addition to previous payments of $286,000 and $96,000. The attorney general's office estimates that hours spent by its staff attorneys in defending the video law tack on about $500,000.

Cumulative total: $1.8 million.

Money well spent?

Not necessarily, said Jon Coupal of the Howard Jarvis Taxpayers Association. The Legislature needs to better assess fiscal risk when voting on legislation certain to be challenged as unconstitutional, he said.

"I think it's fair to say the industry warned the state that they were just getting themselves into a big legal mess and they would end up having to pay attorney fees – and that's exactly what happened," said attorney Paul M. Smith, representing the video-game industry.

Despite red flags raised in legislative analyses of his legislation, Yee said he felt confident it would pass legal muster based on talks with law experts and an opinion from the Legislative Counsel's office.

"When you fight the good fight for a cause you know is right and just, and it's about protecting kids, you don't ever regret that," he said.

Yee said he never intended to challenge free speech rights: Violent, gory video games could continue to be made and distributed, uncensored, under his bill.


To Yee, the issue was not speech but sales: The state sets age limits for sales of tobacco and alcohol to minors – why not violent video games?

California argued that permitting kids to buy heinous video games should be similar to allowing them to buy obscene material, which is not protected speech and not sold to minors.

Alan Brownstein, a University of California at Davis law professor, said the state may have had a stronger case if its video-game law applied to kids 13 or younger rather than to all minors.

"When it's 18, you're basically saying that a 17 1/2-year-old who is going to join the Marines in six months has to bring his mom along when he buys a violent video game," Brownstein said.

The buck stopped with Schwarzenegger in deciding to take the case to the Supreme Court. A former Hollywood actor, Schwarzenegger had lent his own image to several video games based on his "Terminator" action movies. Brown backed appealing the video law.

The issue was nationally important, needed to be resolved definitively, involved children's access to video games of gratuitous violence – and the state was defending a measure that already had been signed into law, Humes said.

"The question was: Should the court be treating violent video games as it treats pornography, allowing some reasonable restrictions to the access of minors to see that stuff?" Humes said. "We thought it was a legitimate issue for the court."

If the Supreme Court had ruled in the state's favor, the government would have been refunded all money spent on the game industry's legal fees, officials said.


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