The Californian state government will go to the Supreme Court in a bid to ban the sales of violent video games to children.

The case involves a law passed in the state in 2005 but barred by local courts before it could take effect. That sparked a legal process which will be settled by the Supreme Court some time after October.

As is always the case in the legal process, a case can only go to the Supreme Court where there is a dispute involving fundamental issues of law rather than fact. In this case, the issue is the extent to which the First Amendment’s free speech provisions extend to material made available to children.

As a general principle, laws which could limit the First Amendment are only allowed when they are a clear response to a specific issue. A previous hearing in the appeals process held that the state government had not offered enough evidence to support its claim that the law was needed to prevent games causing psychological harm to children. The court ruled that the evidence it did provide showed correlation rather than proving causation.

The most disputed aspect of the proposed law is that it bars depictions of “killing, maiming, dismembering or sexually assaulting an image of a human being” unless the game possesses “serious literary, artistic, political or scientific value.” That’s prompted concern that the law would allow the government to make judgments about a game’s artistic merit.

As the Video Games Voters Network points out, six other states have attempted to introduce laws restricting the availability of violent games to children. All have been struck down by courts on constitutional grounds.

It’s also notable that the game industry itself, while hardly upset at getting cash from young game buyers, is not necessarily arguing that violent games should be sold to children, but rather that that decision should not be taken by government.