The U.S. 9th Circuit Court of Appeals held in Video Software Dealers Association v. Schwarzenegger on February 20th, that a California law prohibiting the sale of violent video games to minors infringes on the First Amendment right of free speech.

The statute at issue, Cal. Civ. Code §§ 1746-1746.5, restricted the sale and rental of certain violent video games to minors.  The Video Software Dealers Association argued that the law was a restriction of the First Amendment.

Content-based regulations on speech are presumptively invalid, and subject to strict scrutiny. Under that standard, if less restrictive means are available to achieve even a compelling state interest, they must be used in favor of the restriction.

On appeal, the state argued that the statute was only required to pass rational basis review, under Ginsberg v. New York's "variable obscenity" standard. 309 US 629 (1968). In that case, the court held New York could prohibit the sale of sexually explicit content to minors that was defined, by statute, as obscene.

The court said the state's reliance on Ginsberg was misplaced. "Ginsberg is specifically rooted in the Court's First Amendment obscenity jurisprudence, which relates to non-protected sex-based expression—not violent content, which is presumably protected by the First Amendment."

When the government seeks to protect that interest by restricting speech, "it must demonstrate that the recited harms are real, not merely conjecture, and that the regulation will in fact alleviate those harms in a direct and material way." Turner Broad. Sys. Inc. v. FCC, 512 US 622 (1994).

The district court held the state failed to show that the statute was the least restrictive means of protecting minors from negative effects of violent video games, or that the sales ban was likely to further that interest.  The state failed to satisfy that burden, finding studies on which it relied had substantial flaws, such as using small numbers of subjects and relying on correlational rather than causal data.