US Supreme Court and Violent Video Games

Image from Postal 2,
copyright Running With Scissors Inc.

The state of California had a law that restricted the sale of violent video games to children. A group representing game manufacturers challenged this law in the US Supreme Court. The court ruled that violent video games were protected speech under the first amendment, and the California law was invalid. Read the full ruling here.

Predictably, the industry claimed this as a significant victory for “the creative freedom of artists and storytellers everywhere.”  This is the same industry that operates self-censorship through the ESRB ratings, which are enforced by many retailers. However, the ruling is consistent with how the United States rates movies – industry censorship good, government censorship bad. Never mind that in a democracy, government censorship is accountable and transparent, while industry censorship is secretive.

Others who supported the California law were disappointed, though the ominous statement that “people who didn’t like California’s video game policy could always have fled the state, but no American can flee Justice Scalia’s [majority] opinion” is a little excessive.

Two judges dissented from the majority opinion. Justice Thomas considered the issue of free speech and protecting children, and the social context when the constitution was written. He noted that the California law did not prohibit parents or guardians from purchasing a game for their children, and concluded that the law merely ensured parents are involved, something he felt the framers of the constitution would have approved. In his opinion, the freedom of speech does not include the right to speak directly to minors. The ESRB and retailers seem to agree – they encourage parents to consider the ratings.

Justice Breyer ventured further, noting that the ESRB ratings make the law easy to implement fairly. He noted there is evidence that violent video games may be harmful:

When the military uses video games to help soldiers
train for missions, it is using this medium for a beneficial
purpose.  But California argues that when the teaching
features of video games are put to less desirable ends,
harm can ensue.  In particular, extremely violent games
can harm children by rewarding them for being violently
aggressive in play, and thereby often teaching them to be
violently aggressive in life.  And video games can cause
more harm in this respect than can typically passive
media, such as books or films or television programs.

He also questioned why government restrictions on sexual depiction are generally acceptable, while restrictions on violence are not:

But 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 a 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?

Justice Alito agreed with the judgement that the law was unconstitutional, but wrote a concurring opinion. Apparently agreeing with Justice Breyer, he expressed reservations about the court’s dismissal of the potential harm of video games for children:

In the view of the Court, all those concerned about the
effects of violent video games—federal and state legislators,
educators, social scientists, and parents—are unduly
fearful, for violent video games really present no serious
problem. … Spending hour upon hour controlling the actions
of a character who guns down scores of innocent victims is
not different in  “kind” from reading a description
of violence in a work of literature. The Court is sure of this;
I am not. There are reasons to suspect that the experience of
playing violent video games just might be very different
from reading a book, listening to the radio, or watching a
movie or a television show.

All things considered, this ruling can hardly be considered a clear victory for either side. The history of censorship is a long series of court judgments, and this ruling will likely become a footnote in the development of censorship for interactive media. Meanwhile, some children will continue to obtain and play possibly inappropriate games, regardless of laws and parental control. As always, we need to consider entertainment media in a wider context.

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