Who's next? NY seeks a game-violence law that will pass judicial muster

“It’s more than a trend,” said Ronald Collins, a scholar at the First Amendment Center in Washington. “It seems the cases are moving uniformly down the same track, and that is that such laws are unconstitutional. Such uniformity in declaring a category of laws unconstitutional is very rare.”

That fact is unlikely to dissuade New York from passing its own version of a law that has been repeatedly rejected. The state Assembly passed a game-violence bill, which the Senate will take up after it recess.

A game industry lawyer says legislators and governors approve the bills for political reasons. "[T]here 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.”

The states have been pushing a legal envelope -- trying to get the courts to expand their ability to regulate children's access to pornography to include an ability to regulate violent material.

“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.”

That view was soundly rejected in the California case, as in the other cases, most of which followed the reasoning of Judge Richard Posner of the 7th Circuit.

“Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low,” he wrote. “It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are 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.”

New York is trying to avoid a similar fate by making it a felony to sell or rent to a child any game that includes both pornographic images and egregious violence -- but games that are violent but nonsexual would not be regulated.