OK, so I'm not sure if you've heard about this case, but I was talking about it to my sister, and realized I didn't know enough about it, so I did some research. After doing the research, I decided to write an editorial.
Here's a basic overview. In 2005, California Governor Schwarzenegger tried to pass a law that required all "violent video games", especially those that contained "especially heinous, cruel, or depraved" material would be required to have a 2"x2" sticker that had the number 18 on it. Meaning that you couldn't sell it to someone who was under 18. Seems simple enough. However, the Video Software Dealers Association (VSDA) (now called the Electronics Merchants Association, or EMA) and the Electronic Software Association (ESA) took exception to this, and brought it before the California Supreme court. The law was declared unconstitutional, and it is shortly going to come up before the US supreme court.
Why was it unconstitutional? Well, it violated freedom of speech. I personally,disagree with this verdict; sort of. The reason for this is that it does not limit freedom of speech, but it does enforce compelled speech.
Lets start with why it does not limit freedom of speech; but first, I feel I need to explain how video games are created in a corporate forum. They are made in a similar manner that movies and TV shows are made. Let's take, for example, Mutant Enemy, Joss Whedon's studio. This studio has an idea for a new TV show: Dollhouse. They pitch it to TV networks, and Fox takes it up. Fox now funds it, distributes it to it's affiliates, and is responsible to manufacturing the DVDs. Now, let's take this to video games. Let's use Brutal Legend as an example. The video game development studio was Double Fine Studios, and the production studio was EA. Now, EA is responsible for manufacturing the game and getting it to the distributors, such as Game Stop.
Now with that background under your belt, let's consider why this does not limits ones freedom of speech. Brutal Legend was certainly a violent video game (ESRB rated it as M). Now let us say that in Cali, someone at a Game Stop forgets to put the 2" by 2" sticker on the game? Who would be held culpable? Well, according to the law, the manufacturer (EA) and the distributor (Game Stop). In other words, the people who actually made the "speech" would be held responsible, everyone else would. Unfair? Most certainly. Violation of the first amendment? Most certainly not.
Now, how is it a violation of the first amendment? Because it is a form of COMPELLED speech. These people now must say something about the game based on its content or face charges. Now, this probably doesn't seem that radical. After all, movies have to get ratings right? Wrong. You can make and release a movie and not have it rated by the MPAA, just as you can release a video game and have it not rated by the ESRB. Neither of these are government agencies, both are self-regulatory agencies. You can release a movie or a game without going through these agencies. Granted, no movie theater will show your movie if you don't, and no major game distributor will sell your game if you don't have a rating from the ESRB, but you are not legally compelled to. This would legally compel someone to say something based upon it content.
Another big problem with the law is the loose and vague terms of what makes a "violent video game". The California Supreme court has called it unconstitutionally vague.
The big problem, from my standpoint, that the California Supreme Court seems to have with this law is singling out video games. No such laws exist for any other form of media or artistic expression; and they seem to be afraid that it may spread.
Personally, I like the laws in New York. I remember going to a Game Stop in the Cross-County mall in Yonkers, and having a man who was easily above 40 ask why he was being carded. Apparently, if they didn't card him, and he was an undercover, they would lose their license to sell video games, and the store would be closed. I like this law. It doesn't limit freedom of speech, and it puts the power in the parent's hands. Granted, I do have a problem with this. In New York, it's OK to not card someone for tobacco if they are above 18, or alcohol if they are above 21. In this case, you have to card, no matter what.
I like what the head of the ESRB once said, and I am para-phrasing: We're not here to censor. We're here to let parents know what's in the game.