Supreme Court Strikes Down Ban on Violent Video Games

violent-video-games

In an interesting ruling that crossed political and ideological lines, the US Supreme Court struck down on Monday a ban on the sale of violent video games to minors in California, a bill written by Senator Leland Yee.

The Court’s 7-2 ruling, that again crossed ideological lines, ruled that the 2005 law violated free speech rights under the First Amendment, with the odd couple of Justice Stephen Breyer and Clarence Thomas opposing.

Moreover, the bare majority of five justices argued that video games should be protected under the first amendment, with Justices Kennedy, Ruth Bader-Ginburg, Sotomayor, and Kagan joining Justice Antonin Scalia.  Two justices, Chief Justice Roberts and Samuel Alito, argued that the law could be more narrowly tailored to protect speech interests.

Justice Antonin Scalia said, writing for the majority, “Even where the protection of children is the object, the constitutional limits on governmental action apply.”

“Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary,” Mr. Scalia wrote.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia added. “That suffices to confer First Amendment protection.”

“California has singled out the purveyors of video games for disfavored treatment – at least when compared to booksellers, cartoonists and movie producers – and has given no persuasive reason why,” Justice Scalia wrote as he argued that California had failed to articulate what could be construed a “compelling” state interest for the legislation.

He argued that there was uncertainty as to the actual harmful effects from playing those games.

Chief Justice Roberts and Justice Alito agreed with the majority that the law while “well intentioned” did not meet the “precision the Constitution demands.”

They suggested that they could put forth “differently framed statutes” that imposed narrower restrictions, which might survive court scrutiny.

Critics of the decision were quick to argue this continued the trend of the court toward putting corporate interests before the protection of kids.

In a scathing statement, the bill’s author Senator Yee said Monday, “Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children.”

He added,  “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”

Senator Yee praised Justice Breyer for his dissent.

“Justice Breyer, in his dissenting opinion, clearly understood the need to protect our children from the harmful effects of excessively violent video games and to give parents a tool in raising healthy kids,” said Senator Yee.  

“Applying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries’ facial challenge,” wrote Breyer. “California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game, provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.”

In his dissenting opinion, Mr. Breyer asked, “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

Mr. Breyer continued, “The interest that California advances in support of the statute is compelling. Extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than typically passive media, such as books or films or television programs. I can find no ‘less restrictive’ alternative to California’s law that would be ‘at least as effective.’”

Mr. Breyer concluded with, “This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work.  Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children – by their parents, by their teachers, and by the people acting democratically through their governments.  In my view, the First Amendment does not disable government from helping parents make such a choice here – a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children. For these reasons, I respectfully dissent.”

“While we did not win today, I am certain that this eight year legislative and legal battle has raised the consciousness of this issue for many parents and grandparents, and has forced the video game industry to do a better job at appropriately rating these games,” said Senator Yee.

“Every major national medical association – including the American Psychological Association, American Psychiatric Association, and the American Academy of Pediatrics – has concluded that exposure to violent video games causes an increase in aggressive behavior, physiological desensitization to violence, and decreased pro-social behavior,” said Senator Yee. “Thus, society has a direct, rational and compelling reason in marginally restricting a minor’s access to violent video games.”

The Washington Post calls it a “misguided decision on violent video games,” arguing, “The Supreme Court has decreed that the government is on solid ground when it bans the sale of “girlie” magazines to a minor but tramples on the Constitution when it tries to block that minor from buying a violent video game in which he can (virtually) mutilate and murder a realistic depiction of a woman.”

They add, “The distinction makes no sense — in the real or the virtual world.”

Whereas, as the LA Times commentary Andrew Malcom blasts, “The Supreme Court’s mutant decision ignores one crucial sector of society,” stating, “the Supreme Court’s Monday ruling blowing up California’s law prohibiting the sale of violent video games to those under 18 makes perfectly consistent free speech sense. And fits with the ongoing strongly free speech standards of the Roberts court.”

Clearly, the reference is there to the free speech rights of corporations, which has now been extended to the video industry.

The decision was seen as a blow to Governor Jerry Brown, who defended the law as attorney general, a case that bears his name in Brown v. Entertainment Merchants Association, or EMA. 

Writes Michael Doyle from McClatchy Newspapers, “The ruling in Brown v. Entertainment Merchants Association is a defeat for Gov. Jerry Brown. As California’s attorney general, he defended the law, signed by his predecessor, Arnold Schwarzenegger, the one-time star of the violent ‘Terminator’ movie series.”

While many of our ideological allies oppose this measure, we join the ACLU in supporting the Supreme Court decision.

Writes the ACLU, “The Court called California’s attempt to put video games in a new category not protected by the First Amendment ‘unpersuasive.’ “

ACLU Legal Director Steve Shapiro said in a statement today: “This is a Court that takes an expansive view of the First Amendment. It is particularly sensitive to any claim that the government is using its power to censor unpopular speakers’ unpopular speech.”

We agree.  If I do not want my children to play violent video games, and I can assure you that I do not, that is my choice.  I will control what my children can or cannot play, not the government.

I always fear the ability for the government to ban things that are nebulous as violent video games because it moves the ball towards a slippery and indeed dangerous slope.  What is violent may differ in the views of people.  Indeed, I would argue that while violence is much more graphic and realistic than it was in my day, my video games and the movies I watched were just as violent as what we see today.

It is not the government’s place to decide such matters, in my view.  Therefore, I respectfully have to disagree with Senator Yee who has been a champion of so many great free speech and first amendment issues, and give recognition to the Supreme Court for opposing more unnecessary limits on speech.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 Comments

  1. hpierce

    [quote]and give recognition to the Supreme Court for opposing more unnecessary limits on speech.
    [/quote]Yet, you oppose the rights of city employees to free speech at a public (CC) meeting (yes, different thread)… I still think you need to consult a dictionary about the “hypo-” words…

  2. hpierce

    [quote]I was appalled by the behavior of at least a sizable minority of city employees.[quote]But if you are employed by the city, you need to sit there respectfully[quote][/quote][/quote]Worse yet, the department heads were all in the room and no one did anything about it. If I saw one of my employees acting as they had, they would have been in my office the next morning if I did not pull them out of the meeting on the spot./quote][quote]I will also note that some of the city employees should have given up their seats to members of the public, as particularly the elderly were forced to stand in the hot room.
    [/quote]The latter quote isn’t a free speech issue, but may be telling… did [u][b]you[/b][/u] offer up your seat? My bad… you are a superior life form compared to city employees or seniors… if I parse your comment correctly. david>seniors>public>city employees… feel free to correct me…

  3. David M. Greenwald

    Acting respectfully is not a free speech issue and it is certainly not a first amendment issue “Congress shall make no law” is very different from a writer saying the people need to act respectfully in a public.

    As for the latter: I did not sit in the public section precisely for that reason. I sat up in the press box.

  4. E Roberts Musser

    [quote]In his dissenting opinion, Mr. Breyer asked, “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”[/quote]

    Bravo Justice Breyer!!! I predict CA Senator Yee and others will work on a more narrowly tailored law, and try again. I certainly hope so.

    [quote]It is not the government’s place to decide such matters, in my view. [/quote]

    The gov’t decides what is free speech and what isn’t all the time. It is just a matter of where the line is drawn. For instance, child porn is not seen as free speech. Neither is obscenity. Neither is certain speech that incites violence, and on it goes. I’m not quite sure why the Supreme Court majority voted against the constitutionality of this law – I would have to do more research and read what the CA law actually said. However, it is not uncommon for a law not to pass constitutional muster, the entity that passed it is forced to go back to the drawing board and try again, and then the end product eventually does pass constitutional muster.

    Violent video games are a pox on society as far as I’m concerned, and the more graphic ones that dismember bodies with saws and the like have no place in children’s hands. Why should we allow what is essentially a cartoonized version of a snuff film??? Because someone doesn’t actually get killed? Let’s not give children any ideas… as Columbine so starkly illustrated. Youngsters are very impressionable. And furthermore, what possible social redeeming value is there to allowing a child to play a video game that dismembers bodies? Common sense should prevail here…

  5. David M. Greenwald

    Couldn’t disagree more. All but obscenity (which is largely undefined) involve speech that directly incites action, child porn being a sex act upon a non-consenting adult. Once you turn into the realm of video games you are getting into a realm where the action is to diffuse from the purported consequence for it to be directly tied. I’m sure that’s the point that the justices made.

    “Why should we allow what is essentially a cartoonized version of a snuff film??? Because someone doesn’t actually get killed?”

    That’s precisely why we allow it, someone doesn’t actually get killed. More to the point if you don’t want children, don’t your kids do it, but I don’t want the government making that decision for me.

  6. Musser

    I have an alternate take on this. I personally have played these things and I have watched the evolution where, justice bryer has it right on. It used to be that videogames were mere 8bit pixellated blips. the most violent thing you ever saw was space ships blowing each other up.

    then came mortal kombat in 1991, the violence was real, grotesque, albeit fun to play.

    but the game companies have since upped the ante. The games that breyer are referring to in his descriptive language are grand theft auto and manhunt – the violence being very extreme – where your goals are to torture and kill innocent people for pure pleasure, and the violece is backed up by extreme realism because of technological advances since the 80’s and 90’s.

    Having said all that, I hardly think you can put this stuff in the category of “speech”. It is not speech, it is gratuitous violence pure and simple. WHen the first amendment was written, it was an attempt to protect one from being imprisoned for expressing a viewpoint the government disagrees with.

    THAT IS ENTIRELY DIFFERENT than watching mutilated bodies in a game, and I know the difference.

    personally, I agree with Justice Bryer. Kids cannot go see R-rated films by themselves, they cannot go to strip clubs, either. because like videogames, those have nothing to do with speech or speech rights. The government can place limits on these things, and like elaine said, does all the time.

    the other problem I have is with the argument, “its up to the parents.”
    to a certain extent, the iphone and internet have made these things so available and accessible, the only way a parent can truly have control is to tie their kids to a bed. thus I think to put the entire responsibility on parents is unfair.

    on a closing note, I am of the mind that your society has to adapt to change, and socitey is radically changing thanks to the internet.

  7. David M. Greenwald

    You make some interesting points David. I still do not see a compelling interest on the part of the state which is the requirement for infringement of free speech.

    In a way you have undermined your own argument, on the one hand you argue that government should step in to prevent kids from purchasing violent video games, on the other hand, you have stated that “iphone and internet have made these things so available and accessible, the only way a parent can truly have control is to tie their kids to a bed.”

    How do you expect the government to do any better than that? They can’t exactly tie a kid to a bed either.

  8. Dr. Wu

    How many times have we seen a 7-2 vote with Breyer and Thomas on one side? Maybe never?

    I think Breyer and Thomas got it right.

    Violence is not free speech.

  9. JayTee

    I agree, Elaine. I think the only people you’ll find constantly using the “it’s up to the parents” argument are people who either don’t have kids or whose kids are too young to go outside without supervision. Even if you don’t allow these games in your own home, it’s damn near impossible to control what happens anyplace else.

  10. K.Smith

    Parents have quite a bit of control, especially at the younger ages.

    Over the years I have volunteered at an elementary school in Davis, I have witnessed young children playing violent video games (“Call of Duty,” “Halo,” etc.) as young as in kindergarten (where several of these children drew exceedingly violent drawings in class, based on these games). And, I might add, these were children of folks I would otherwise consider enlightened, involved parents. This is entirely in the hands of parents, since I have yet to meet any 5-to-10 year olds who went out and bought these games on their own.

    Similarly, parents do not have to buy their children I-phones or other smartphone devices with full Internet access and turn them loose with them at such young ages. Unfortunately, kids and parents now consider it their God-given right to have a cell phone starting somewhere around 2nd grade (again, I’ve seen this prolifically in our community, and in fact starting in fourth grade, my daughter was in the minority who did not have her own cell phone).

  11. E Roberts Musser

    [quote]That’s precisely why we allow it, someone doesn’t actually get killed. More to the point if you don’t want children, don’t your kids do it, but I don’t want the government making that decision for me.[/quote]

    It doesn’t matter one whit if my kids are not allowed to purchase or use violent video games bc I prevent them from getting a hold of them. If other parents allow their kids to play violent video games, the result can be devastating – the Columbine massacre being a perfect example. And then my kids may end up as one of the victims of another parent’s permissiveness.

    [quote]Couldn’t disagree more. All but obscenity (which is largely undefined) involve speech that directly incites action, child porn being a sex act upon a non-consenting adult. Once you turn into the realm of video games you are getting into a realm where the action is to diffuse from the purported consequence for it to be directly tied. I’m sure that’s the point that the justices made. [/quote]

    You undercut your own argument, to wit: obscenity as just but one example. To further illustrate my point, from wikipedia: “According to the Freedom Forum Organization, legal systems, and society at large, recognize limits on the freedom of speech, particularly when freedom of speech conflicts with other values or rights. Limitations to freedom of speech may follow the “harm principle” or the “offense principle”, for example in the case of pornography or hate speech. Limitations to freedom of speech may occur through legal sanction or social disapprobation, or both.”

    So to repeat, the gov’t has every right to limit speech, it is just a question of where the line is drawn. There is no general requirement on the limitation of speech that the speech somehow causes a bad/evil action or anything of the sort…

  12. E Roberts Musser

    [quote]In a way you have undermined your own argument, on the one hand you argue that government should step in to prevent kids from purchasing violent video games, on the other hand, you have stated that “iphone and internet have made these things so available and accessible, the only way a parent can truly have control is to tie their kids to a bed.” [/quote]

    This pig won’t fly. Parents can control what their children see on the internet/iphone to a certain extent with parental control filters. However, sure kids can sneak into a movie theater and watch X rated movies. But that doesn’t mean the law should allow it… I would assume from your statements that you believe children should be allowed to watch X rated movies if mom and dad have no problem with it, bc the gov’t should not interfere? If you believe that, come back and talk to me when your kids are a bit older…

  13. David M. Greenwald

    Elaine: So far my views have not changed a bit since I have kids. And frankly I don’t think they’ll change here either. Government doesn’t need to tell me when my kids should or not play violent video games or watch pornography. I suspect you’ll raise the point not everyone is as conscientious as we are, and you are correct. But guess what, that gets back to the point, kids will find a way regardless of the laws. And that’s my point. It’s useless for government to try to regulate speech in this manner.

  14. E Roberts Musser

    [quote]kids will find a way regardless of the laws. [/quote]

    I don’t want to help them find a way…

    [quote] It’s useless for government to try to regulate speech in this manner.[/quote]

    As I said before, the gov’t already regulates all sorts of speech, including commercial speech… it is merely a question of where one wants to draw the line. Clearly you have no problem showing kids porn, but most of society doesn’t think that’s a wise idea – thank goodness. How about child porn? Obscenity? Misleading advertising? Hate speech? Want the gov’t to stay out of that too?

  15. jimt

    I suspect there is a small minority of players that are turned on by the mayhem in video games and might tend to roll in the direction of reproducing some of it in the real world.

    I also suspect there are many players whose aggressive tendencies are sated by playing the violent video games.

    Does the psychiatric community have any strong position on this; or is it unresolved/debated there as well?

  16. E Roberts Musser

    To jimt: Here is a link to a good article on the subject: http://serendip.brynmawr.edu/exchange/node/1723

    In part: “Calvert and Tan (5) compared the effects of playing versus observing violent video games on young adults’ arousal levels, hostile feelings, and aggressive thoughts. Results indicated that college students who had played a violent virtual reality game had a higher heart rate, reported more dizziness and nausea, and exhibited more aggressive thoughts in a posttest than those who had played a nonviolent game do. A study by Irwin and Gross (6) sought to identify effects of playing an “aggressive” versus “nonaggressive” video game on second-grade boys identified as impulsive or reflective. Boys who had played the aggressive game, compared to those who had played the nonaggressive game, displayed more verbal and physical aggression to inanimate objects and playmates during a subsequent free play session. Moreover, these differences were not related to the boys’ impulsive or reflective traits. Thirdly, Kirsh (7) also investigated the effects of playing a violent versus a nonviolent video game. After playing these games, third- and fourth-graders were asked questions about a hypothetical story. On three of six questions, the children who had played the violent game responded more negatively about the harmful actions of a story character than did the other children. These results suggest that playing violent video games may make children more likely to attribute hostile intentions to others.

    In another study by Karen E. Dill, Ph.D. & Craig A. Anderson, Ph.D., violent video games were considered to be more harmful in increasing aggression than violent movies or television shows due to their interactive and engrossing nature. (8) The two studies showed that aggressive young men were especially vulnerable to violent games and that even brief exposure to violent games can temporarily increase aggressive behavior in all types of participants.
    The first study was conducted with 227 college students with aggressive behavior records in the past and who completed a measure of trait aggressiveness. They were also reported to have habits of playing video games. It was found that students, who reported playing more violent video games in junior and high school, engaged in more aggressive behavior. In addition, the time spent playing video games in the past were associated with lower academic grades in college, which is a source of frustration for many students, a potential cause for anger and aggression as discussed in the previous paragraph.”

  17. jimt

    ERM–glad you posted the research results; its good its being looked into.

    From the research results you posted; there is still some of the chicken/egg question left to address:
    Do aggressive kids play more violent video games (and if not available would expend their aggression elsewhere) or does playing viiolent video games make for more agressive kids? At least in the short-term they would seem to, from the research results you posted.

    I wonder about the long term effects though; especially for an aggressive kid with a fantasy-prone personality.
    I’m thinking of a friend who was brutally beaten and robbed, at a level of violence comparable to that portrayed in videos like grand theft auto. I was briefly acquainted with the perp (who was jailed) before he did this; and had the sense he might do something like this for kicks (victim agrees that was the sense he got) and kind of to fulfill a fantasy–make life as exciting as grand-theft auto!

  18. E Roberts Musser

    To jimt: Thanks for the thoughtful response. My take on things is that even if it is more aggressive kids playing these violent video games (which I suspect is not necessarily the case based on my own personal observations), it is just those kids we have to worry about. They are already aggressive – we don’t want to give them any ideas on how to be even more aggressive!

  19. wdf1

    Brian: [i]I trust parents to make the right decision more than I trust the government to do so.[/i]

    I really want to believe this. I would like to think that parents will do the right thing in these matters, but when I look around, I’m not convinced. There are just enough absent parents (either mentally or physically) to concern me in this area.

    Movie theaters can decide not to sell tickets to R-rated movies, maybe even PG-13, to minors. Should that unconstitutional in light of this? But note that a minor accompanied by an adult could see such movies.

    Jon Stewart had a good piece on this last week:

    [url]http://www.thedailyshow.com/watch/thu-june-30-2011/moral-kombat[/url]

    Stewart ends the SCOTUS segment with a “fair warning” notice that some of you maay want to take seriously. If you choose to watch it, it will make you wonder if the Supreme Court understands what’s out there these days.

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