Comment & Debate
The US Supreme Court ruled in June of 2011 against California’s ban on the sale of violent video games to minors. The California law would have imposed $1,000 fines on stores that sold violent video games to anyone under 18. The ruling highlights what is a much larger, national and international debate regarding the effect of violent video games on youth, and the potential need, subsequently, for the regulation of their sale. The California law defined violent games as those ‘in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being’ in a way that was ‘patently offensive,’ appealed to minors’ ‘deviant or morbid interests’ and lacked ‘serious literary, artistic, political or scientific value.'”[1] Accepting that this description of violent video games may be true, the debate about banning them relates largely to the limits of free speech and government censorship. Should the government be involved in limiting speech regarding violence toward youth? Can violent images be considered “obscene” in the same way as sexual imagery, and thus receive the same age-restricted regulation? Are video games an entirely new medium stretching beyond the ordinary boundaries of “speech” due to their ability to engage players in virtual acts of violence and murder? Does this kind of engagement pose unique risks to youth, perhaps encouraging them to emulate the acts they see in these games? These and other pros and cons are considered below.
“A few years ago, on Long Island, six teenagers were arrested after a crime spree involving break-ins, a violent mugging and a carjacking attempt. According to what the teens told authorities, they had been trying to live out the life of Niko Belic. Ever heard of him? He is the protagonist in the wildly popular video game ‘Grand Theft Auto IV.’ What the teens did represents one of the worst-case scenarios imagined by those who advocate for government to limit the sale of violent video games to minors. Fortunately, such scenarios are very few and very far between. And Monday, the Supreme Court handed down a decision preventing the state of California from instituting a ban on the sale of such games to minors. The decision was steeped in legal precedent concerning free speech and censorship. But make no mistake: The Supreme Court’s decision in no way negates or devalues the decades of scientific research that have been conducted demonstrating that the consumption of violent media leads to increases in aggressive and anti-social behavior.”
“High-profile events such as teenagers getting inspired by the actions of a violent video game character can be tragic, but they also distract from the large body of knowledge that has accumulated on the impact of violent media on children. Since the early 1970s, scientists have observed very clear, frequently replicated and strikingly robust effects. In experimental studies, children who view violent television shows or films — or who play violent video games — are significantly more likely to behave aggressively in comparison to children who view nonviolent television shows or films, or who play nonviolent video games. In long-term studies, individuals who consume violent media during childhood end up more aggressive as adults, in comparison with peers who consume nonviolent media during childhood. The studies that have produced such findings now number in the hundreds. The effects have been seen in children from urban areas, as well as suburban and rural areas; in the United States, as well as many other Western and non-Western nations.”
“As policy statements from organizations such as the American Academy of Pediatrics and the American Psychological Association have made clear, violent media represents a real and compelling risk to the behavioral and mental health of children and adolescents. In fact, research studies have yielded the conclusion that the effect of violent media consumption on aggressive behavior is in the same ballpark statistically as the effect of smoking on lung cancer, the effect of lead exposure on children’s intellectual development and the effect of asbestos on laryngeal cancer.”
Justice Breyer: “Unlike the majority. I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children.”[2]
A 2005 University of Illinois at Urbana-Champaign study found: “Players were not statistically different from the non-playing control group in their beliefs on aggression after playing the game than they were before playing.” He added: “Nor was game play a predictor of aggressive behaviors. Compared with the control group, the players neither increased their argumentative behaviors after game play nor were significantly more likely to argue with their friends and partners.”[3]
¨Many people assume that video game violence is consistently and unspeakably awful, that little Jacob spends most afternoons torturing victims to death. But these people haven’t played many video games. The state drew its examples of depravity almost exclusively from an obscure game called Postal 2, which, surveys show, is rarely played by children or young teens. The game is deliberately outrageous; you can, for example, impale a cat on your gun as a makeshift silencer. A trailer for Postal 3, said to be out later this year, encourages players to ´Tase those annoying hockey moms or shoot them in the face! This may sound disturbing, but it’s also ridiculous. And young people know it: as one 13-year-old said during a study I conducted at Harvard, “With video games, you know it’s fake.”
F.B.I. data shows that youth violence continues to decline. It is now at its lowest rate in years. Violent video games, therefore, can hardly be seen as a major problem since they´ve been around for years.[4]
“there is much better evidence to support psychological harm from exposure to violence on TV news.”
“such games (in moderation) may actually have some positive effects on developing minds.”
“a teen can try out different identities — how it feels to be a hero, a trickster, a feared or scorned killer, or someone of a different age or sex — in the safe fantasy world of a video game.”
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL: “Because the Act imposes a restriction on the content of pro-tected speech, it is invalid unless California can demonstrate that itpasses strict scrutiny, i.e., it is justified by a compelling governmentinterest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy-chological studies purporting to show a connection between exposureto violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demon-strated effects are both small and indistinguishable from effects pro-duced by other media.”[5]
eo games to minors. The California law imposes no restriction on thecreation of violent video games, or on the possession of such games by anyone, whether above or below the age of 18. The California law does not regulate the sale or rental of violent games by adults. And the California law does not prevent parents and certain other close relatives from buying or renting violent games for their children or otheryoung relatives if they see fit. […] The Court’s opinion distorts the effect of the California law. I certainly agree with the Court that the governmenthas no “free-floating power to restrict the ideas to whichchildren may be exposed,” ante, at 7, but the California law does not exercise such a power. If parents want theirchild to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking inexactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented frompurchasing certain materials; and under both laws, par-ents are free to supply their children with these items if that is their wish.”[6]
¨Legal definitions and prosecutions for obscene materials in the United States always have been directed at depictions of sexual conduct. Violence has never been part of that definition, and the Supreme Court continues in its belief that depictions of sex are harmful, but depictions of violence are not. The terms “patently offensive” and “prurient interest” in past court decisions invariably resulted in subjective line-drawing in attempting to distinguish gratuitous depictions of sex from those that have “literary, artistic, political, or scientific value.” Simply stated, the value of adult sex is an elusive concept, difficult to determine in an objective way, which poses a fundamental problem that underlies legislation and court decisions in this area. When sexual conduct is carried out in a tasteless manner, little social interest is involved. This makes it difficult to regulate or prohibit, due to its unclear impact on public health, safety or welfare. Objectively more harmful than gratuitous sex are depictions of gratuitous violence. A significant social concern arises when sex is depicted in a way that involves force against an unwilling victim, against children, or even when unjustified violence without sex is depicted. A similar case can be made for depictions of violence resulting from hate, due to race, ethnicity or sexual orientation.¨
Justice Alito: “The objective of one game is to rape a mother and her daughters […] players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.” He also added that children may soon play three-dimensional high-definition games wearing equipment that allows them to “feel the splatting blood from the blown-off head” of a victim.[7]Brown v. Entertainment Merchants Association, 2011: “It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and re-enact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in ´ethnic cleansing and can choose to gun down African-Americans, Latinos, or Jews.”[8]
Justice Scalia wrote in June 2011 “opinion of the court” against the California ban on the sale of video games to minors: “Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Consti-tution, “esthetic and moral judgments about art and lit-erature . . . are for the individual to make, not for the Government to decree, even with the mandate or approvalof a majority.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do notvary” when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).”[9]
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL: “the State wishes to cre-ate a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence.”
Justice Scalia opinion: “No doubt a state possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL: “JUSTICE ALITO has done considerable independent re-search to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—butdisgust is not a valid basis for restricting expression. […] JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.”[11]
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL, Opinion of the Court (June 2011): “Califor-nia has singled out the purveyors of video games for disfa-vored treatment—at least when compared to booksellers,cartoonists, and movie producers—and has given no per-suasive reason why.”[12]
Holding that obscenity only covers sexual material, the US Supreme Court struck down California´s law for not satisfying the “strict scrutiny” required of content-based speech restrictions.[13]
The Entertainment Software Association and the Entertainment Merchant Association wrote in a 2011 brief for the US Supreme Court on their consideration of a California ban on violent video games for youths: “The California statute at bar is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded.”[14]
Justice ALITO June 2011 opinion: “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.See ante, at 10–11. 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. […] the Court is far too quick to dismiss the possi-bility that the experience of playing video games (and the effects on minors of playing violent video games) may bevery different from anything that we have seen before. Any assessment of the experience of playing video gamesmust take into account certain characteristics of the video games that are now on the market and those that arelikely to be available in the near future. Today’s most advanced video games create realistic alternative worlds in which millions of players immersethemselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage.7 Many of thegames already on the market can produce high definition images,8 and it is predicted that it will not be long before video-game images will be seen in three dimensions.9 It is also forecast that video games will soon provide sensory feedback.10 By wearing a special vest or other device, a player will be able to experience physical sensations sup-posedly felt by a character on the screen.11 Some amici who support respondents foresee the day when ‘virtual-reality shoot-‘em-ups’ will allow children to ‘actually feel the splatting blood from the blown-off head’” of a victim.Brief for Reporters Comm. for Freedom of the Press et al. as Amici Curiae 29 (quoting H. Schechter, Savage Pas-times 18 (2005)). Persons who play video games also have an unprece-dented ability to participate in the events that take placein the virtual worlds that these games create. Players can create their own video-game characters and can use pho-tos to produce characters that closely resemble actualpeople. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course ofthe action in the game. In addition, the means by whichplayers control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games wasoften directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to per-form.12 For example, a player who wants a video-gamecharacter to swing a baseball bat—either to hit a ball or smash a skull—could bring that about by simulating the motion of actually swinging a bat. These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed.”[15]
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL: “(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary”[16]
¨one could just as easily argue that interactivity makes games less harmful: the player controls the action, and can stop playing if he feels overwhelmed or upset.”
“California’s claim that “interactive” video games present special problems, in that the playerparticipates in the violent action on screen and determines its out-come, is unpersuasive.”
Only a few kinds of speech, like incitement, obscenity and fighting words, are beyond the protection of the First Amendment, according to Justice Scalia, adding that the court would not lightly create new excluded categories.[17]
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL: “(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary”[18]
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL, Majority Opinion (November, 2010): “California claims that video games present specialproblems because they are “interactive,” in that the playerparticipates in the violent action on screen and determines its outcome. The latter feature is nothing new: Sinceat least the publication of The Adventures of You: Sugar-cane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation inthe violent action, that seems to us more a matter of de-gree than of kind. As Judge Posner has observed, all literature is interactive. ´[T]he better it is, the moreinteractive. Literature when it is successful draws the reader into the story, makes him identify with the charac-ters, invites him to judge them and quarrel with them, toexperience their joys and sufferings as the reader’s own.´”[19]
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