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Md. game makers bolstered by Supreme Court decision

Working out of a Highlandtown studio, Ben Walsh and his small team of video game developers recently created My Pet Rock, a family-friendly Facebook game.

But, Walsh said, some day he might decide to design a video game for a more, er, mature audience — and he's heartened to know the Supreme Court now has his back.

In a landmark case, the high court on Monday struck down a California law barring the sale or rental of violent video games to minors. The 7-2 decision gave video games the same First Amendment protections afforded books, plays and movies.

The decision was cheered across the country by video game companies, including those in the Baltimore area.

"I'm happy about the ruling," Walsh, chief executive of Pure Bang Games, said Monday. "My biggest concern is the slippery slope that the California law represented. Once you start saying what is allowed, what is not allowed, it can spread into movies and comic books and other forms of art."

The Supreme Court decision was the culmination of a decade-long battle in the courts between the video game industry and opponents who sought to restrict its influence on minors.

The industry has won a dozen battles in lower courts, but the case of Brown v. Entertainment Merchants Association was the first time the Supreme Court had weighed in.

The industry has long said its self-policing efforts, including ratings by the independent Entertainment Software Ratings Board, are sufficient to help parents monitor their children's use of video games.

"This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Michael D. Gallagher, president and chief executive of the Washington-based Entertainment Software Association, which represents video game companies, in a statement.

The decision will allow video game developers to freely pursue their projects in an increasingly lucrative business, industry observers say. Many designers and programmers view their work as creative activity deserving of constitutional protections.

If the California law were allowed to stand, "you would be limiting what people can do in a game," said Gabriel Pendleton, communications manager for the Baltimore chapter of the International Game Developers Association.

"You look at any other type of media and people have the freedom to press the boundaries," he said.

In addition to constitutional concerns, the video game industry has been worried about how potential restrictions could affect game sales and growth, which have been on an upward trajectory in recent years.

Bethesda Softworks LLC, a Rockville-based game developer, can take several years to create a game and unveil it to a worldwide audience. Pete Hines, spokesman for the company, said it has been making "brutal, post-apocalyptic games set in an alternative universe" — with great success.

Two of its games, Fallout 3 and Fallout New Vegas, have each garnered more than $300 million in worldwide sales, he said.

"It's always been our stance that there's a mature audience we're making these games for," Hines said. "We feel like there's an audience for those games, just like there's an audience for slasher movies."

The appetite for video games in general keeps growing.

In 2009, worldwide video game sales were estimated at about $60 billion. They were projected to grow to $70 billion by 2015, according to DFC Intelligence, a market research firm.

In Maryland, video game companies, many of which are based in Baltimore and Montgomery counties, are part of a digital media industry that in 2008 reported $5.5 billion in sales and employed 32,000 people, according to a state report released last year.

New markets in gaming online and on mobile devices are driving growth in the video game industry beyond just computer and console games. Video games on Facebook and the iPhone represent two new, vast markets.

The worldwide online video game market is projected to reach $29 billion in 2016 — nearly double the $15.7 billion reported last year, according to a recent DFC Intelligence survey.

Monday's Supreme Court ruling does not affect laws in some states, including Maryland, that consider video games a medium whose sale to minors can be regulated under obscenity statutes concerned with depictions of nudity and sex.

Other items regulated under Maryland's obscenity statute for minors include books, magazines, photos and videos.

In the case of the California law, the Supreme Court ruled the state could not create a new category of unprotected speech in order to restrict violence in video games that children might play. The court also found that psychological studies "did not prove" that children acted more aggressively after exposure to violent video games.

"Like books, plays and movies, video games communicate ideas," Justice Antonin Scalia said. "The most basic principle of First Amendment law is that government has no power to restrict expression because of its content."

Scalia spoke for five members of the court who ruled that under no circumstances could the government be allowed to protect children by limiting violence in the media.

"There is no tradition in this country of specially restricting children's access to depictions of violence," Scalia said in the courtroom. "Certainly, the books we give children to read — or read to them when they are younger — have no shortage of gore. Grimm's fairy tales, for example, are grim indeed."

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his opinion.

Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. applauded California's effort to deal with a "serious social problem: the effect of exceptionally violent video games on impressionable minors," but those justices, too, voted to strike down the state's law because it did not spell out clearly enough the limits the gaming industry must abide by.

Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Thomas said minors had no free-speech rights. Breyer said he thought the law was constitutional as is.

Tribune Newspapers contributed to this article.

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