There were quite a few surprising moments at the Supreme Court argument Tuesday about California’s attempt to ban violent video games. There were references to “gratuitous violence” as material that “appeals to a base instinct especially [in] minors.” It made me wonder whether the scene in the Odyssey where Ulysses puts out the Cyclops’ eye with a burning stake would be considered gratuitous violence that appeals to a base instinct. A video game in which the gamer played the part of Ulysses and inflicted the horrifying injury on the Cyclops would almost certainly be restricted to 18 and older under the California law. The more things change, the more they stay the same: Plato thought Homer’s epic poems were a corrupting influence and should be banned.
This is the latest in a long line of attempts to demonize popular entertainment, especially if it has particular appeal to young people. There was hysteria over dime novels, crime stories, comic books, TV, rock and roll, rap, the internet, and now video games. Like all the other forms of expression that were feared initially – including the printing press – video games will certainly become part of mainstream culture, and the anxiety over their effects on young people will appear foolish in retrospect.
There were hopeful signs on Tuesday, that a majority of the Court will see the danger to free expression in accepting these fear-based arguments. The Justices raised questions about whether violent films, books, fairy tales, and cartoons would be next. (Bugs Bunny and Wiley Coyote got special mention.) or whether the state could ban depictions of smoking and drinking. In response, Justice Sotomayor observed that “we don’t look at a category of speech and decide that some of it has low value.”
Several Justices were concerned about how a game producer or retailer could tell which games were violent under the California rule. Justice Ginsburg asked if the state had any advisory opinions as to what constitutes “deviant violence,” and Justice Scalia suggested that California should consider creating “the California office of censorship [to] judge each of these videos one by one.”
Several Justices seemed to accept the claim that violent games are harmful and think that some are much worse than the “girlie” magazines the state is permitted to regulate. They seem to think the state ought to be able to do something about at least some of them. Others were more skeptical of the claims of harm, and some questions were cryptic. It was hard to interpret the assumption behind Justice Roberts’ suggestion that the state could regulate violent games that are harmful to minors if it can regulate cigarettes. Was he playing devil’s advocate, or does he think that expression can be regulated in the same way as physical substances? It was impossible to tell.
The argument bounced all over the place, not dwelling on any one of these complex legal and factual questions long enough to explore any fully, merely long enough to indicate that they are part of the debate the Justices will have among themselves in the months to come.
For more about the hearing, read NCAC Advisory Council member Marjorie Hein's article "Of Liberals and Conservatives: Using 'Common Sense' to Censor Video Games."