Frogger, 2Extreme, and Rugrats—the only video games I have ever owned. I had them for my Play Station (PS1, that is) when I was a kid. I am by no means considered a gamer, but I found this topic to be particularly interesting.
In my opinion, kids should be out running and playing and scraping their knees, not in front of a TV trying to rack up kills playing Halo 3. I played sports as a kid and read books and did my homework; I just never got into the whole video game phenomenon that is sweeping the nation.
Still, I think the case of Schwarzenegger v. Entertainment Merchants Association is extremely fascinating. If I were a parent, I wouldn’t want my kids playing violent video games at all. But I would also like to think that I would have some handle on my household and I would be able to monitor how often my kids play video games and what kind of games they play. But I know what kind of kid I was, and if my kids are anything like me, the whole parenting thing will be a challenge to say the least.
That is where, as a parent, I would love some help from the government. But as a citizen I wouldn’t want any First Amendment free speech rights infringed upon. Should law ban the sale of violent video games to minors? If so, what First Amendment implications are there as a result?
The first obvious question is what constitutes a violent video game? That is a pretty hazy category so defining it is necessary to reaching a decision on this case. The state of California is defining a violent video game as, “a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being…”4
While that is a somewhat detailed definition, the better question is what effects does playing a game like that have on a minor? During oral arguments Justice Scalia interjected asking the lawyer representing California if he wanted to ban Grimm’s Fairy Tales too?8 Justice Scalia goes on to ask why not regulate books, movies, TV shows, or other violent material in various forms. The lawyer countered with “the interactive nature” argument saying they were given “substantial evidence” relating video game violence to real-world violent behavior.8
This is a topic for an entirely different blog. There are studies that lie on both sides of the fence on this issue. Should the state of California prove there is a correlation between these games and violent behavior? Or is the thought of the possibility enough? For the Supreme Court to create an exception to the First Amendment, there needs to be convincing evidence—let’s take a look.
Focusing on the First Amendment implications, is this ban unconstitutional? One of the few exceptions to the First Amendment is for sexual obscenity. California argues that violence should be added in this category of exceptions.
The state of California cited Ginsberg v. New York. They argued that minors have different rights when it comes to free speech, as opposed to adults, so a more lenient test, “variable obscenity,” should be used rather than the traditional strict scrutiny.4
The state argued that sexually explicit material and violence are categories that should be restricted to minors. But sexually explicit material and violence are two different categories. In Miller v. National Broadcasting Company, a case cited in oral arguments by the state8, the court limited the obscenity test (Miller Test) to sexual conduct. Sex and violence are not that similar and I don’t think the courts should redefine obscenity. So, in my opinion, the Ginsberg rationale does not apply in this case to violence.
Next we would apply strict scrutiny:
1. Compelling governmental interest?
2. Narrowly tailored?
3. Least restrictive means?
1. There is a compelling governmental interest here: the safety of minors and society. The well being of children.
2. However, the act is not narrowly tailored. The broad and vague definition of violent, along with the vagueness of the act in its entirety, has demonstrated that it is not a narrowly tailored regulation.
3. The state described their means as the “most effective” means, leaving other alternatives that are less restrictive like a campaign to educate parents on these games.
Clearly, the act doesn’t pass strict scrutiny, leaving it to be unconstitutional. The research that the state relied on showed that there was a correlation between violence and video games, not causation. Not every kid that plays Call of Duty is turning out to be a mass murderer, only the select few we hear about on the news. Until there is conclusive evidence that shows causation, I don’t think any law of this kind will stand up in court.
Other arguments have also been made that companies that sell these video games often time have their own corporate policy not to sell Mature rated games to minors. If this is a widespread practice in businesses, I see the law to be useless. Bottom line, parents should be the ones making these decisions.
I think the state would be imposing on parental rights by creating such a law. Unfortunately there are parents out there that will be hands-off parents, allowing their children to run wild and do as they please. But there are also the helicopter parents like mine that try to micromanage even with their grown children. Either way, parents need to take responsibility for their kids. After all, they are a reflection upon them. I guess what I am trying to say is, raise your kid with a good moral compass and it won’t matter if they play a few violent video games.
When I first heard about this case, my natural reaction was to side with the state of California. I don’t like video games, I don’t play them, and I figured if I was a parent I would want a little help. But after researching and hearing the different arguments I think the facts show that it is an invalid content-based regulation and the Supreme Court should not create another exception to the First Amendment based on violence. It opens up the jar to many other violent media forms like books, movies, music etc. to be regulated. We shouldn’t deprive people of their Constitutional right to free speech based on fear of influencing children.
Sources:
I'd have to say I agree with you. When I began reading your blog, my first thought was, "No way, this is regulation based on content, and this is not OK." However, the more I think about it, I have to ask, what's next? If the government takes it upon itself to decides what's too violent of a video game for children to buy -- where does that line of thinking end? Like you said, books could be banned, movies could be banned, even TV shows could be banned. The First Amendment is in place for a reason -- it gives us the freedom to express ourselves. Banning the sale of these video games to minors is a very slippery slope in my opinion. Yes, video games are more interactive than a movie or TV show, but just because a some kids exhibited violent behavior after playing a video game doesn't mean that all or even most will.
ReplyDeleteToni,
ReplyDeleteI found your post very interesting, and I definitely agree with you. Although I definitely do not personally agree with the burning of the Koran, the marketplace of ideas would be severely limited if every speech that resulted in some sort of indirect action were prohibited.
Although this is somewhat unrelated to the topic of freedom of speech, I think it is also important to note that the Florida congregation who participated in the event is fairly small from the accounts that I’ve read. I think that while the mainstream media in the US attempted to abstain from giving the event any coverage in fear of giving the pastor exactly the kind of press he was looking for, I also believe that the reaction and play it might have been given on an international level helped to fuel the uproar abroad. On an ethical and professional level, I think it is important for the press to take into account the effect that its coverage will have and the context in which media chooses to frame such events. Whether or not this is done, however, I still believe not only that the press has the right to report on it as they so independently choose, but also that the Floridian congregation had the right to demonstrate their beliefs through their protest.