Excerpts from the US Supreme Court’s June 27 Ruling on Banning Minors From Buying Violent Video Games
In declaring California’s law prohibiting the sale or rental of “violent video games’ to minors violates the First Amendment right to free speech, Justice Antonin Scalia, writing for the majority of the US Supreme Court, says the following:
(Citations have been removed and paragraphs shortened to ease reading.)
California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence but there is none.
Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.
As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.”
Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake.
“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away and the roots thereof crackled in the flame.”
In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface.
And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
This is not to say that minors’ consumption of violent entertainment has never encountered resistance.
In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency.
When motion pictures came along, they became the villains instead.
“The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close. . . . They say that the moving picture machine . . . tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison.” Moving Pictures as Helps to Crime, New York Times, Feb. 21, 1909.
For a time, our Court did permit broad censorship of movies because of their capacity to be “used for evil.” But we eventually reversed course.
Radio dramas were next and then came comic books. Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate.
But efforts to convince Congress to restrict comic books failed. And, of course, after comic books came television and music lyrics.
California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome.
The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind.
As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
Justice Alito (in a separate concurring opinion) has done considerable independent research to identify video games in which “the violence is astounding.”
“Victims are dismembered, decapitated, disemboweled, set on fire and chopped into little pieces. . . . Blood gushes, splatters, and pools.”
Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.
And the same is true of Justice Alito’s description of those video games he has discovered that have a racial or ethnic motive for their violence —“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.”
To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress?
Who knows? But it does arouse the reader’s ire and the reader’s desire to put an end to this horrible message.
Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech — whether it be violence, or gore or racism — and not its objective effects, may be the real reason for governmental proscription.
And, Footnote 4 from Page 9 of the majority opinion:
Justice Alito accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection.
Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy and restrictions upon them must survive strict scrutiny.
Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature.”
Justice Stephen Breyer in dissent:
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.
Nor is the statute, if upheld, likely to create a precedent that would adversely affect other media, say films, or videos, or books. A typical video game involves a significant amount of physical activity. And pushing buttons that achieve an interactive, virtual form of target practice (using images of human beings as targets), while containing an expressive component, is not just like watching a typical movie.
With the assistance of the Supreme Court Library, I have compiled these two appendixes listing peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games.
Some of these studies take care to explain in a commonsense way why video games are potentially more harmful than, say, films or books or television.
In essence, they say that the closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm.
Many, but not all, of these articles were available to the California Legislature or the parties in briefing this case. I list them because they suggest that there is substantial (though controverted) evidence supporting the expert associations of public health professionals that have concluded that violent video games can cause children psychological harm.
And consequently, these studies help to substantiate the validity of the original judgment of the California Legislature, as well as that judgment’s continuing validity.
(The two appendixes are 15 pages long.)
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