Issue 113, Winter 2010-11

In Schwarzenegger v. Entertainment Merchants Association, the Supreme Court will decide whether the state can impose criminal penalties for selling or renting violent video games to minors. It may seem inconsequential to nongamers, but it poses a critically important issue even for people who will never play a video game: whether representations of violence will continue to be protected by the First Amendment. The case pits those who claim that kids are harmed by exposure to fictional violence and that government regulation is necessary against millions of video game players, scientists, journalists, civil libertarians and others who reject the claim that kids are harmed by video games and warn of the risk to free expression if government is able to regulate fictional violence. More than 30 amicus briefs representing 180 organizations and individuals have been filed with the Court. (See the brief on behalf of the ACLU, NCAC and the National Youth Rights Association.)

Legally, the dispute comes down to two narrow questions: can the government restrict the sale of otherwise legal expression to minors and, if so, under what circumstances? California argues that violent video games should be treated like obscenity – by definition explicit sexual content that lacks social value – which is not protected by the First Amendment for either adults or minors. Whatever one’s views on the relative merits of sexual and violent content, obscenity is a historical and narrowly drawn exception to the general rule that speech is protected. Creating a new exception for a completely different type of content will open a Pandora’s Box.

Indeed, in 1948 the Supreme Court invalidated a New York law banning the sale of “criminal news…or pictures, or stories of deeds of bloodshed, lust or crime,” which the state argued were “vehicles for inciting violence and depraved crime.” The Court held that “[t]hough we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.” Five federal courts of appeals and numerous other courts have since recognized that violent content is fully protected. As one appeals court judge observed: “Violence has always been a central interest and a recurrent theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware.” Consider, also, Titus Andronicus, The Odyssey, Gustave Doré’s illustrations of Dante’s Inferno, Rodin’s The Gates of Hell, and countless images of crucifixion and martyrdom.

The same judges have repeatedly rejected the contention that minors are harmed from exposure to violent video games, citing a lack of credible scientific evidence. Some social scientists even think violent video game players may “develop an enhanced sensitivity to what is going on around them, and this may help with activities such as multitasking, driving, reading small print…” Others observe that “violent video games may be used by minors to help them ‘work through angry feelings or relieve stress, and …explore different roles that may be unacceptable in daily life.”

As California admits, it is asking the Court to “boldly [go] where no court has gone before.” Let’s hope the Justices decline the invitation. After all, if the state can restrict minor’s access to violent video games, why not violent movies and books?

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