I tend to agree with Justice Breyer:
"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer said. "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured and killed — is also topless."
Though said 13 year old can find stuff on the web that goes so far beyond " topless" that banning either is probably stupid, either ban or allow but at least be consistent.
I'd be interested in knowing what Scalia is smoking (so I can avaiod it): "Unlike depictions of "sexual conduct
," Scalia said, there is no tradition in the United States of restricting children's access to depictions of violence, ..."
"California's 2005 law would have prohibited anyone under 18 from buying or renting games that give players the option of "killing, maiming, dismembering, or sexually assaulting
an image of a human being." "
Though to be fair Scalia probaly thinks the California law is too broad since they said violence OR sexual (mis)conduct.
"Leland Yee, a child psychologist and California state senator who wrote the video game ban, told The Associated Press Monday that he was reading the dissents in hope of finding a way to reintroduce the law in a way it would be constitutional."
Try reading the assents, as I have bolded above. Changing the "or" in ""killing, maiming, dismembering, or sexually assaulting an image of a human being." to an "and", while it would water down the law considerably since violence without sex would be ok, it may still be of some use as it would likely pass SCOTUS muster (giving you a foot in the door) and may provide the game authors some uncertanty about what they can get away with.