Is it 'common sense' to keep violent games from kids?

WASHINGTON - The Supreme Court debated sex, violence and free speech Tuesday, as several justices strongly argued for breaking new ground and upholding a California law that would forbid the sale of violent video games to those younger than 18.

"Why isn't it common sense," said Justice Stephen Breyer, that if the law can forbid selling pictures of a naked woman to a young teen it can also forbid the sale of scenes "of gratuitous torture of children" in a video game?

Chief Justice John Roberts agreed, citing scenes from the game "Postal 2" in which girls are smashed in the face with a shovel and their bodies set on fire. "We don't have a tradition in this country" of exposing children to that kind of graphic violence, he said.

But in a case that seemed to break the usual liberal-conservative alliances, Justice Antonin Scalia clashed with Roberts and Breyer and argued the First Amendment's protection for freedom of speech has never been applied to restrict violence in the media. "The same argument could have been made when movies came out" that exposing children to violence would harm them, he told Zachery Morazzini, the deputy state attorney general for California.

The court will eventually decide whether video games, which are estimated to reach into two-thirds of American homes, are protected forms of artistic expression or the latest version of obscenity that should be kept from minors.

Several states besides California have tried to forbid violent video game sales to minors, but courts have struck them down. California's law was passed in 2005, but courts have blocked it from taking effect.

The justices sounded split about California's law. It would prohibit the sale or rental to anyone younger than 18 of a video that allows a player the option of "killing, maiming, dismembering or sexually assaulting an image of a human being" and has no serious artistic or literary value.

Later, Alito said he disagreed with Scalia's historical approach, saying video games "are a new medium" and that it "is entirely artificial" to decide based on a guess as to what the 18th-century framers would have thought.

But Justices Ruth Bader Ginsburg and Sonia Sotomayor joined with Scalia in raising free-speech objections. "Could you get rid of rap music?" Sotomayor asked, since the lyrics "talk about killing people."

Morazzini said video games are more troubling than movies, music or television because the children are participants in the killing and maiming.

Justice Anthony Kennedy and Elena Kagan asked questions on both sides without tipping their hands.

"You are asking us to go into an entirely new area," Kennedy said about restricting violence in the media. He said he worried the state's definition of a banned game was "vague." Those who violate the law could be fined $1,000 per game sold.

It will likely be several months before the court rules.