NCAC Testimony before the NYS Task Force on Youth Violence

Good morning. My name is Joan Bertin. I am the Executive Director of the National Coalition Against Censorship (“NCAC”). NCAC is an alliance of 48 national non-profit organizations, including religious, educational, professional, labor and civil rights groups, united in their support for freedom of thought, inquiry, and expression. NCAC educates the public and policy makers about threats to free expression, mobilizes grass roots support for the First Amendment, provides advice and assistance to individual engaged in debates about censorship, and advocates for laws and decisions protective of free speech and democratic values.

Thank you for this opportunity to address the Task Force on Youth Violence and the Entertainment Industry. My testimony today will discuss the implications of the First Amendment for proposals to rate and restrict video games and other entertainment for violent content.

Before I reach the constitutional issues, however, I want to start with a brief discussion of censorship in general. It comes as a surprise to most people that censorship is a significant, if under-recognized, problem. We receive hundreds of inquiries each year about censorship controversies around the country, including many in New York State. For every call we receive, there are many instances of censorship that we don’t hear about, and other instances in which self-censorship disguises the, but does not resolve, the problem.

Every year, we receive complaints about books like The Adventures of Huckleberry Finn, Of Mice and Men, Scary Stories to Tell in the Dark, Blubber, and more. Complaints relate to every conceivable subject matter: sex, religion, violence, racial themes, multiculturalism, bullying, insolence, evolution, witchcraft, cursing, too realistic, too unrealistic, and so on. In short, the impulse to censor is alive and well, and almost everything is vulnerable to challenge.

As this indicates, sensibilities about art and literature vary widely, as do views on what is appropriate for children to see and hear. The First Amendment accounts for these different perspective through its core principle which allows each of us to decide for ourselves what to read, see, say, hear, and think. Once we depart from this principle, however, it would become difficult or impossible to limit the exception to certain issues, venues or forms of expression. If an exception is made for violent content, why not for the sacrilegious, or subversive? If in video games, why not films and television?

Like almost all First Amendment advocates, I am concerned about violence. I’m the mother of two teenagers, so I also have all the concerns of most parents about school safety and safety on the street. But, at the same time, I also believe that my children benefit greatly from living in a country where they are allowed to read widely, to express themselves freely, and to think independently. And I, like most parents, oppose governmental interference in my judgments and decisions about my entertainment choices and child-rearing philosophy.

Turning now to the issue of governmental efforts to regulate violent content in certain forms of entertainment,² unlike the situation with obscenity, the Supreme Court has never carved out an exception in First Amendment analysis for violent speech and images. This is true, even where minors are concerned. In the more extreme case involving speech that advocates violence, the Court has refused to penalize it unless it constitutes actual incitement to lawless action. You may recall the case NAACP v. Claiborne Hardware, 458 U.S. 886 (1982), which involved a boycott of white merchants organized by the NAACP, involving speech advocating violence, threats of violence, and some actual violence. Nonetheless, the Court held that “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” This and numerous other cases demonstrate that real life violent speech is protected under the First Amendment in under circumstances where the threat to public safety and order is palpable, although not imminent.

The Court has also specifically considered violence in popular entertainment. As long ago as 1948, Winters v. New York, 333 U.S. 507 (1948) established that such material is fully protected by the First Amendment, regardless of its social worth. The statute at issue made it a crime to print, publish, or disseminate “criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust, or crime.”³ The statute was defended on the ground that it was within the “state’s police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency.” The Court observed that it “can see nothing of any possible value to society in these magazines,” but nonetheless found that “they are as much entitled to the protection of free speech as the best of literature.” Id. at 510.

Although the opportunity has presented itself on several occasions since then, the Court has consistently declined to depart from this rule, or to treat violent content as an exception to the First Amendment, as it has done in its analysis of sexually-explicit obscene materials. Lower court decisions have followed suit. For example, in Video Software Dealers Association v. Webster, 968 F. 2d 684 (8th Cir. 1992) the Eighth Circuit Court of Appeals struck down a statute restricting the sale or rental of violent films to minors, and in Eclipse Enterprises, Inc. v. Gulotta, 134 F. 3d 63 (2d Cir. 1997) the Second Circuit held unconstitutional an ordinance forbidding the sale of “heinous crime” trading cards to minors. See also Interstate Circuit, Inc. v. City of Dallas, 366 F.2d 590 (5th Cir. 1966)(invalidating statute prohibiting minors from viewing violent films).

Video games provide an easy target because they are often characterized as entertainment with little social value. In Winters, however, the Court rejected the claim that First Amendment protections apply only to “worthy” material or to “the exposition of ideas,” and stated instead that the “line between the informing and the entertaining is too elusive for the protection of that basic right.” Winters v. New York, 333 U.S. at 510. More recently, the Supreme Court has relied on Winters and other cases to observe that First Amendment guarantees are “‘not confined to the expression of ideas that are conventional or shared by a majority’ …. Nor is it relevant that [such] materials … are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all.” Stanley v. Georgia, 394 U.S. 557, 566 (1969) (references omitted).

No doubt, the High Court’s reservations about carving out an exception in First Amendment jurisprudence for violence stem at least in part from a recognition that doing so would threaten a wide range of artistic and political expression. If the First Amendment did not fully protect violent imagery and graphic descriptions, a great deal of literature, art, media, and other material would be vulnerable to censorship, depending on the sensibilities of the moment and individuals charged with making the determination. For example, graphic depictions of violence can be found in the Bible, The Odyssey, Agamemnon, Faulkner's Light in August, and James Dickey's Deliverance; in films such as Paths of Glory, The Seventh Seal, and The Godfather; in Picasso's Guernica and almost all religious art depicting the Crucifixion and religious martyrdom; and in theater including much of Shakespeare (Macbeth, Henry V, Titus Andronicus).

Violence has always been a feature of popular entertainment as well as more high-brow fare. The Punch and Judy Show depicted domestic and child abuse, among other things, and the Paris’ Grand Guignol Theater's horror shows included scenes of hands being cut off at the wrist and the flesh being cut off a young girl. It is difficult to imagine anything more violent that the Roman Circus or public executions, which were a form of mass entertainment in some times and places. In our day, the wrestling match and the evening news provide an ample dose of violent content. The horrific image of a napalmed child is certainly seared into the memories of many of us.

Critics assail unrealistic depictions of violence in movies like Pulp Fiction, and even Tom & Jerry cartoons, because they are said to "trivialize" violence or "desensitize" viewers to its effects. But, as noted, the History Channel, many news shows, and some sporting events, all offer nightmarish images, bad role models, and examples of wrong-doing going unpunished. If anything, it’s reality that numbs our senses, not fiction.

Popular culture has often been the particular target of censorship campaigns. In the 19th century, popular novels were attacked as a corrupting influence, as were comic books in the mid-20th century. It is worth remembering that entertainment once attacked as low-class and corrupting sometimes comes into the mainstream and is even given value by later generations. Mozart's Marriage of Figaro was once considered "low class" entertainment, as were Shakespeare's comedies. Even material that will never rise to such exalted heights merits recognition as entertainment and an outlet for human emotion. Whether video games will ever be culturally redeemed as worthy entertainment remains to be seen. The fact is that adults purchase most video games, that millions of people enjoy them as a form of entertainment, and that few (if any) are inspired by them to engage in violent criminal activity.

If that were the standard for censorship, however, almost nothing would be safe. If we regulated the things that violent criminals have cited as their inspiration, we would have to restrict the Bible, among many other great works of art and literature. The fact that someone cites the Bible or the Koran or anything else in an effort to justify violence does not require that we take the claim seriously, or consider it exculpatory, or decide that the thing should be censored. To implicitly cede to violent criminals the power to define for the entire community what ideas and images are “dangerous” is to put the inmates in charge of the asylum.

We are a violent species, and were long before video games or any other forms of modern electronic media could be blamed—think of the Crusades, the Inquisition, the Holocaust and other institutionalized forms of torture and violence. The most stunning examples of violence in our own time do not bear even a remote link to video games or any form of media violence: the ferocious nationalistic and tribal violence in Kosovo, Rwanda, and Somalia; sanctioned penalties, like stoning, imposed in some places for individuals convicted of adultery or pre-marital sex; butchered bodies in a mass grave in East Timor; or, closer to home, middle-aged white men venting incomprehensible anger by shooting randomly into a brokerage house and church full of teenagers. The vast majority of violent acts have nothing whatsoever to do with media violence or any other single feature of modern society. Human behavior is more complicated than that.

Just this point was made in the National Research Council’s report on Understanding and Preventing Violence (1993):

The likelihood of someone’s committing a violent act depends on many factors. Biological, individual, family, peer, school, and community factors may influence the development of an individual potential for violence. Whether the potential becomes manifest as a violent act depends on the interactions between this violence potential and immediate situational factors, such as the consumption of alcohol and the presence of a victim….[N]o one influence in isolation is likely to account for the development of a potential for violence, except perhaps in some special cases. It is possible that to produce a violent adult, one needs, at a minimum, a child born with a particular temperamental profile, living in a particular family constellation, in a disadvantaged neighborhood, exposed to models of aggression and patterns of reinforcement of aggressive behavior, having a particular school experience, having a particular set of peer relations, and also experiencing certain chance events that permit the actualization of violent behavior….

Recent crime statistics, indicating a decline in violent crimes in the society at large and in schools during the very time period that media critics cite a rise in violence in the media, further undermine claims of a causal relationship between media violence and criminal acts.

To paraphrase H.L. Mencken, for every complex problem there is a simple solution, and it is almost always wrong. Regulating violent content in video games or other forms of entertainment is the wrong response to a complex problem. Whatever one thinks of video games, we all have a stake in preserving the right to read, see, hear, and think as we choose without government interference. Regulation of violent content in one arena invites it in all, as the Supreme Court observed in Winters v. New York: “The present case…involves the circulation of only vulgar magazines. The next may call for decision as to free expression of political views….” It is impossible to distinguish rationally and consistently between “acceptable” and “unacceptable” violent content. That judgment is inherently subjective. The Constitution accordingly allows each of us to make our own decisions about such content, gives parents the right to set their own guidelines for their minor children, and restricts the role of government in controlling these choices.

If the premise is that it is constitutionally permissible to infringe the rights of all, in an effort to control the behavior of a few, a less constitutionally vulnerable option is stricter regulation of firearms. This would be less vulnerable to constitutional challenge because, unlike violent media, firearms are the “but for” cause of much violent crime, and restrictions on access to weapons would unquestionably be more effective in reducing violent crime than restrictions on access to violent media. Thus, if violence prevention is sufficiently compelling to warrant an infringement of constitutional rights, there is a sounder basis for regulating gun ownership, because of the clear correlation between firearms and violence. In contrast, if concerns about the Second Amendment rights of law-abiding individuals are thought to preclude such an approach, then it should be a foregone conclusion that it is unacceptable to impose limitations on the First Amendment rights of similarly law-abiding individuals.

Recent case law in the Second Circuit should also give pause to legislative efforts to regulate violent content. In Eclipse Enterprises, Inc. v. Gulotta, 134 F. 3d 63 (2d Cir. 1997), the Second Circuit Court of Appeals held that the effort to regulate “heinous crime” trading cards was content-based because of its focus on violence, and that it was presumptively invalid absent a showing that the regulation satisfied the “strict scrutiny” test. That test requires proof that the regulation serves a compelling governmental interest, that it is necessary to achieve that interest, and that it is narrowly tailored. In this case, the test was not satisfied. The court found that there was no research demonstrating a link between the cards and juvenile crime, that studies of television violence were inconclusive and inapplicable, and that no reason had been advanced why this particular form of entertainment was singled out for regulation. The court concluded that the “First Amendment imposes a high standard of precision on legislative efforts to regulate content-based speech, and the law under scrutiny here simply does not meet that standard.” Virtually all federal courts to consider the question of government regulation of violent speech or expression are in agreement with the Second Circuit. It is no accident that efforts to justify such regulations have failed, given the significant infringement on First Amendment interests involved, and the hypothetical and conjectural nature of the claims of causality.⁴

The “bedrock principle underlying the First Amendment … is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). At bottom, efforts to restrict and regulate violent content in various media are just that—efforts to suppress the offensive and disagreeable. Long ago, Justice Brandeis wisely observed:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent….

[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it….

Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.

Whitney v. California, 274 U.S. 357, 376-8 (1927) (references omitted) (Brandeis, J., concurring).

I urge you to address violence in ways that are respectful of free speech and expression rights. Not only are the traditions and lessons of the First Amendment worthy of such respect, but taking the focus off suppressing expression, and placing it squarely on preventing violent conduct, is undoubtedly a more effective way to reduce crime than giving government the power to legislate about the content or quality of entertainment.

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¹ An abbreviated version of this testimony was presented before members of the Task Force on Youth Violence and the Entertainment Industry, in Albany, N.Y., on October 6, 1999. These remarks do not necessarily represent the views of all NCAC participating organizations.

² These comments pertain only to government regulation or other activity, not to actions by individuals or private organizations to provide information to consumers, or to the right of individuals and private groups to criticize the content or quality of any form of entertainment.

³ The lower appellate court had interpreted the statute to apply only to “collections of stories ‘so massed as to become vehicles for inciting violence and depraved crimes….’” 333 U.S. at 518-19.

⁴ While Eclipse Enterprises, Inc. v. Gulotta analyzed the regulation of trading cards as content-based, an approach which triggered strict scrutiny analysis, some courts addressing efforts to regulate violent content have approached—and invalidated—them under vagueness doctrine. See, e.g. Winters v. New York, 330 U.S. 507 (1948) and Video Software Dealers v. Webster, 968 F. 2d 684 (8th Cir. 1992). While the analysis may differ, the results are the same.