Will the Supreme Court Let California Kids Buy Violent Video Games?

By Andrew Moseman | November 2, 2010 11:20 am

Supreme_CourtToday, video games have their day in court. The Supreme Court is going to hear arguments of a California law meant to restrict the sale of extremely violent video games to minors, and to punish those who do so by fine.

A 2005 California law prohibits selling or renting such games to minors based on legislative findings that they stimulate “feelings of aggression,” reduce “activity in the frontal lobes of the brain” and promote “violent antisocial or aggressive behavior.” The law never took effect because lower courts found it violated free-expression rights. In a 2009 ruling, a federal appeals court in San Francisco said the state provided no credible research showing that playing violent videogames harmed minors, and found the law was an unconstitutional effort “to control a minor’s thoughts.” [Wall Street Journal]

Despite the fact that this law was stuck down multiple times and so never went into effect—and the fact that the Supreme Court declined to hear related First Amendment cases—the court accepted this one.

One reason why the case has attracted an unusual amount of attention is that the Supreme Court’s recent rulings, including the Citizens United decision, have been generally pro-free speech. Unless the court wanted to nudge First Amendment law in a more restrictive direction, the thinking goes, there would be no reason for it to accept the case in the first place. [CNET]

So what are the arguments for and against? Editorials in favor of the law, like the Washington Post’s, use the rationale that minors’ rights are restricted all the time. Therefore violent video games are just one more thing that ought to be regulated out of their hands, along with alcohol, tobacco, and pornography.

That is not to say that the California law is perfect. For example, it does not specify who is responsible — the manufacturer? the retailer? — for affixing the “18” label to games. And its definition of “violent video game” could be deemed too vague to pass constitutional muster. The justices should give states the flexibility to enact restrictions on video game sales to minors, even if the California law proves unacceptable. [Washington Post]

However, similar laws in other states have not survived the scrutiny of the First Amendment.

Similar laws in Indiana, Illinois, and Washington have been struck down by federal courts. The courts’ reasoning, which is pretty orthodox First Amendment doctrine, is that the statutes target speech on the basis of its content. Because they do so, they must pass “strict scrutiny”–meaning that the state must show that they advance a “compelling interest” of the state, and that there’s no “less restrictive means” to advance that interest. It’s a tough standard to meet. The courts have designed it that way over the years because, as they have read the First Amendment, the government needs a very, very good reason before it can ban speech it doesn’t like. [The Atlantic]

To try to get around this, the California law relies on wording like “appeals to a deviant or morbid interest,” or that violent games have no “serious literary, artistic, political or scientific value.” That’s because those are the kinds of arguments that passed muster in the past in rulings against pornography or obscenity.

And then there’s legislating from disgust, which the San Francisco Chronicle’s editorial board apparently would like to do.

The games are more than a test of the Constitution. Allowing children to thumb away at the controls that maim, torture and kill human figures comes with deadening side effects to a player’s personality and outlook. The court should recognize what California saw in such games: lethal harm that merits a warning label. [San Francisco Chronicle]

The Chronicle can be put off by brutal games like Postal 2 if it so chooses, but it dodges the important question: Are the “deadening side effects” to personality and outlook that they claim—or the claims of antisocial behavior and reduced frontal lobe activity written into the California law—proven? Or do they simply stem from adults’ anecdotal feelings of unease and traditional knee-jerk reaction to new forms of media?

PC World reports that a cadre of 80-plus scientists who filed an amicus brief with the court about this case argue that no, these links are far from certain.

“The courts were right to reject these studies because they do not even establish the ‘correlation’ between violent video games and psychological harm to minors that California says exists, let alone the causation of harm that, as respondent explains, the First Amendment requires,” argues the brief. “Nor do the studies show a connection between playing violent video games and violent or aggressive behavior of minors, which explains why California disclaimed that interest below.” [PC World]

Finally, as The New York Times argued in May after the Supreme Court first agreed to hear the case: You might not think that Grand Theft Auto IV is on the same cultural plane as Othello, but get over it.

California lawmakers may have been right when they decided that video games in which players kill and maim are not the most socially beneficial form of expression. The Constitution, however, does not require speech to be ideal for it to be protected. [The New York Times]

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Image: Wikimedia Commons

CATEGORIZED UNDER: Technology, Top Posts
  • Jason

    This is an issue for parents, not for the Supreme Court. If your child purchases a game you find to be too violent, take it back to the store or get rid of it. If you purchase a violent game for your child, you have only yourself to blame.

    Don’t infringe upon my right to purchase a game for entertainment because you are afraid of the impact it will have on minors. If you open retailers to litigation because a minor managed to purchase a violent game then you will cause those retailers to stop carrying said games.

    How many parents took their children to see Passion of the Christ despite the extremely violent scenes in that movie? They said it was all right in the ‘context’ of the theme. How about Call of Duty when you storm the beaches of Normandy? Or in any roleplaying game when you stereotypically kill the dragon to save the princess? Or let’s go one step further when the United States Army itself now distributes a -free- game where the goal is to kill the opposing force? Stop trying to repress things just for the ‘children’.

    As for the content influencing minors to be more ‘violent’.. I’d say we’re hardwired that way. Ask any young boy what imaginary games he played as a child and you’re likely to find cowboys and indians, army men or countless others. Stop blaming others for your failures as parents or a chemical imbalance in a child.

  • scott

    True….not that long ago in human history kids were taught to fight wars, had to work in brutal conditions at an early age, etc. Very few kids through the eons have lived a carefree, ideal childhood. What about terrible family dynamics, video games or not? I know some really messed up people from that.

    Although I would not let a child play a violent game, I think the foods they (kids) eat these days are creating more of a public health nightmare than video games and affect brain chemistry in worse ways, contributing to bad behavior, health, moods, etc. A bowl of Cocoa Puffs for breakfast, tator tots and chicken fingers for lunch, candy bar for snack, a coke and McDonalds happy meal for dinner I think is much worse than a video game…as stated above, there have always been bad guy vs good guy, kill bad guy games.

  • Matt

    What makes finding a correlation between violent video games and real-life violence is that people are different. There are 2 possible responses to overstimulation: become desensitized (as the law presumes will happen) or become oversensitized. What we need to learn is what other aspects of a person’s circumstances lead them to one response or the other.

  • Bob Snyder

    All they are trying to do is restrict the sale of “violent” games to MINORS, not the public. Is this really much different than restricting the sale of DVD’s rated R or MA to minors? They’re not saying that minors can’t play the games, just that they can’t buy them. I don’t see much of a problem with this other than not showing much in the way of evidence concerning a (measurable) detrimental impact to how the youths who play these games grow up.

  • Gil


    It is very different to legally restrict sales: movie and music ratings and enforcement, like video game ratings and enforcement currently outside places where laws like this are attempted, are entirely voluntary and not a legal issue. It is up to the trade groups (MPAA/RIAA/ESA) and the retailers to restrict sales.

    It is not illegal for Best Buy to sell a 4 year old the Saw movie collection, nor the latest vulgar rap CD, nor is it illegal for a teen to buy tickets to a rated R or NC-17 film. Nor should it be.

  • Andrew

    This case is ridiculous. The argument is that minors already have limited rights, so why not limit them more? Make it a decision for the parents or, better yet, give the minor’s their rights. The government can’t go on saying that it knows best forever, the minors need to be respected as people as well. The parents can decide how to raise their children, not the government.


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