Jay Albanese. ¨Albanese: Supreme Court got it wrong on violent video games.¨ Richmond Times Dispatch. July 2nd, 2011: ¨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.
The court missed an opportunity to shift the focus of obscenity from sex to unjustified violence. Why doesn’t obscenity law prohibit the depiction of gratuitous violence rather than sex alone? Depictions of violent assaultive behavior exhibited without legal justification could be held objectionable and punishable under law. The legal justifications for the use of force (e.g., self-defense, defense of others) are well-defined in existing law, as are the definitions of assault, so justifiable violence has a clear legal meaning.
A new definition of obscenity might include photographs, videos or broadcasts depicting assaultive behavior committed by persons without legal justification. The inclusion of sex in these depictions of violence could be a sufficient, but not necessary, element of obscenity. The only exception might be factual accounts of real events that have informational or educational value.
Unlike the inconclusive link between depictions of sex and sex offenses, there is a body of research that reports on the effects of depictions of wanton violence on aggressive behavior (despite the court’s typical dismissal of research findings in this case). Therefore, descriptions of wanton violence can be declared obscene due to their possible effects on behavior, and violence without justification is something our society sees as more objectionable than sex without social “value.”
The singular focus on depictions of sex as obscene allows the Supreme Court to argue with a straight face that this case involving violent video games “would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none.” The court goes on to compare violence in the Odyssey, Grimm’s Fairy Tales and cartoons with the “astounding” violence in the video games at issue in this case.
For the U.S. Supreme Court to conclude that gratuitously violent video games are “protected speech,” while depictions of sex are obscene, it missed an important opportunity to state that gratuitous violence is indeed more harmful and objectionable, and that our legal prohibitions should be less a matter of taste, and more a matter of fact.¨