Whether you agree with the Supreme Court’s ruling against a California law against violent video games, today, you should know that strong arguments were made on both sides.
- Video games are just like literature?
- America is OK with kids seeing violent entertainment?
- Video games are meaningfully more immersive than books?
- The Founding Fathers never intended the Freedom of Speech to apply to kids?
- There’s something wrong if it’s okay to criminalise the sale of an image of a naked woman to a kid but not the sale of a game in which the kid can chop a woman’s head off?
Those are among the arguments the nine justices made today as the Court ruled 7-2 that the California law criminalising the sale of ultra-violent games to minors was un-Constitutional. Read highlights of all four arguments made by the court today and see where you stand. Even some of the justices who ruled against California seem alarmed about video games.
No matter what your position is now, I think you’ll be nudged out of your comfort zone by the time you’ve read the strongest parts of all four arguments.
The Scalia Argument
Conservative justice Antonin Scalia, joined by justices Ruth Bader Ginsburg, Elana Kagan, Anthony Kennedy and Sonia Sotomayor, presented the opinion of the Court. The opinion finds that games are not discernibly different from other forms of speech and deserve the same protections. This view rejects arguments that the interactivity of games affects young people in a distinct or sufficiently damaging way that requires a law to protect children from the most violent video games.
Excerpts from Scalia….
The main thrust: “We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s]of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571–572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.”
No American tradition of blocking kids from violent entertainment: 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.”
Tawdry entertainment still deserves Free Speech protection: “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-a question to which we devote our attention in Part III, infra. 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.”
Video games are a uniquely interactive medium: “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.”
The science doesn’t show a sufficient danger: The State’s evidence is not compelling. California relies primarily on the research of Dr Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, ‘[n] early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.’ [Video Software Dealers Assn. 556 F. 3d, at 964.]They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a non-violent game.” … AND… One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.
Games can’t be that dangerous if parents can buy them for kids: “The Act is also seriously underinclusive in another respect-and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.”
The gaming industry’s ratings, administered by the ESRB, are sufficient: ” This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.”
The State doesn’t know what parents disapprove of: “While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights require.”
The Alito Argument
Justice Samuel Alito was joined by Chief Justice John Roberts in a concurring opinion. The justices ruled for the gaming industry, but for different reasons. Writing for himself and Roberts, Alito is alarmed by the subject matter in video games. He doesn’t believe that games are no more immersive or potentially harmful to kids than books and other forms of protected speech. He sees games as a special case, presenting special potential dangers to kids. His main objection to California is simply that its law was too vague.
Excerpts from Alito….
The main problem with the Court’s/Scalia’s opinion is that it underestimate gaming’s unique ability to affect its audience, be they kids or adults: “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.
The main problem with California’s law is that it is too vague: “The broad ground adopted by the Court and the narrower ground that the law’s definition of “violent video game,” see Cal. Civ. Code Ann. §1746(d)(1)(A) (West 2009), is impermissibly vague.” … contrasting it to the SCOTUS-approved “Miller Test” for obscenity (a test also used to define which non-obscene but pornographic content which can be illegal to sell to minors)…. “By contrast, the threshold requirement of the California law does not perform the narrowing function served by the limitation in Miller. At least when Miller was decided, depictions of “hard core” sexual conduct were not a common feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the California law. It provides that a video game cannot qualify as “violent” unless “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.” §1746(d)(1). For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depiction.”
The ESRB ratings have offered sufficient protection to kids only while the threat of legal protection loomed: “Citing the video-game industry’s voluntary rating system, the Court argues that the California law does not “meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so.” Ante, at 15. The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7–10, a threat that the Court’s opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired6-or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished.”
Video games are, well, a bit messed up and as technologically progresses may need to be treated differently than books: “Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage. Many of the games already on the market can produce high definition images, and it is predicted that it will not be long before video-game images will be seen in three dimensions. It is also forecast that video games will soon provide sensory feedback… Some amici who support respondents [people who sided with the gaming industry]foresee the day when “‘virtual reality shoot-‘em-ups’” will allow children to ” ‘actually feel the splatting blood from the blown-off head’ ” of a victim… While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform. For example, a player who wants a video-game character to swing a baseball bat-either to hit a ball or smash a skull-could bring that about about by simulating the motion of actually swinging a bat… These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed. In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.”
Thus, video games aren’t necessarily just another form of literature: “Think of a person who reads the
passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.”
So maybe video games might need a law that protects kids… maybe: ” I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.”
The Thomas Argument
In one of two dissenting opinions, Justice Clarence Thomas almost completely avoids a discussion of video games, instead focusing on whether the First Amendment applies to children. He believes that it does not and cites myriad historical examples to argue that the Founding Fathers of the United States believed that parents had a right and duty to regulate the speech of their children as well as their children’s access to speech. He therefore does not see as a violation of the Freedom of Speech this California law that would block kids from getting violent video games without a parent’s involvement.
Excerpts from Thomas….
The main thrust: “The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es]the freedom of speech.” US Const., Amdt. 1. But I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.”
The First Amendment isn’t for kids: “In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre, supra, at 360. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.”
The Puritans thought parents should control kids’ speech: “Part of the father’s absolute power was the right and duty ‘to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.’ E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) (‘Children should not be left to themselves… to do as they please… not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs’ or ‘fond and amorous Romances… fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.’ The History of Genesis, pp. vi–vii (3d ed. corrected 1708).”
Pre-Revolutionary parents also had authority over their kids’ access to speech: “In the decades leading up to and following the Revolution, attitudes towards children changed. See, e.g., J. Reinier, From Virtue to Character: American Childhood, 1775–1850, p. 1 (1996) (hereinafter Reinier). Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same overarching principles remained. Parents continued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children read. And laws at the time continued to reflect strong support for parental authority and the sense that children were not fit to govern themselves.”
Eventually even Thomas Jefferson knew that parents should have total moral authority over their children: “This conception of parental rights and duties was exemplified by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters constantly and often gave specific instructions about what the children should do. See, e.g., Letter to Martha Jefferson (Nov. 28, 1783), in S. Randolph, The Domestic Life of Thomas Jefferson 44 (1939) (dictating her daily schedule of music, dancing, drawing, and studying); Letter to Martha Jefferson (Dec. 22, 1783), in id., at 45–46 (‘I do not wish you to be gaily clothed at this time of life… [A] bove all things and at all times let your clothes be neat, whole, and properly put on’). Jefferson expected his daughter, Martha, to write “by every post” and instructed her, “Inform me what books you read [and]what tunes you learn.” Letter (Nov. 28, 1783), in id., at 44. He took the same approach with his nephew, Peter Carr, after Carr’s father died. See Letter (Aug. 19, 1785), in 8 The Papers of Thomas Jefferson 405–408 (J. Boyd ed. 1953) (detailing a course of reading and exercise, and asking for monthly progress reports describing ‘in what manner you employ every hour in the day’); see also 3 Dictionary of Virginia Biography 29 (2006). Jefferson’s rigorous management of his charges was not uncommon. ‘[M] uch evidence indicates that mothers and fathers both believed in giving their children a strict upbringing, enforcing obedience to their commands and stressing continued subjection to the parental will.’ Norton 96″
And thus, at the time the Constitution was written, of course Free Speech didn’t apply to children… “The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty. See MacDonald 6 (‘The Puritans are virtually the inventors of the family as we know it today’). In the decades leading up to and following the Revolution, the conception of the child’s mind evolved but the duty and authority of parents remained. Indeed, society paid closer attention to potential influences on children than before. See Mintz 72 (‘By weakening earlier forms of patriarchal authority, the Revolution enhanced the importance of childrearing and education in ensuring social stability’). Teachers and schools came under scrutiny, and children’s reading material was carefully supervised. Laws reflected these concerns and often supported parental authority with the coercive power of the state.”
Back to the present, since the California law involves kids’ access to speech, it doesn’t violate the First Amendment: “All that the law does is prohibit the direct sale or rental of a violent video game to a minor by someone other than the minor’s parent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typical case, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally understood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.”
The Breyer Argument
Justice Stephen Breyer was the other dissenter, though he disagreed with the Court’s opinions for reasons not at all similar to Thomas. He believes the California law is fine. It is specific enough, he says, and it is necessary, given the potency of video games and the lack of non-governmental ways to help parents keep ultra-violent games from kids.
Excerpts from Breyer….
The California law is no more vague than the court-supported “Miller Test,” which was used to allow New York State to criminalise the sale of some sexual content to kids: “Comparing the language of California’s statute (set forth supra, at 1–2) with the language of New York’s statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words ‘kill,’ ‘maim,’ and ‘dismember’ any more difficult to understand than the word ‘nudity?’ Justice Alito objects that these words do ‘not perform the narrowing function’ that this Court has required in adult obscenity cases, where statutes can only cover’ “hard core”‘ depictions. Ante, at 6 (opinion concurring in judgment). But the relevant comparison is not to adult obscenity cases but to Ginsberg, [a Supreme Court case in which the Court ruled that the State of New York could criminalise the sale of pornographic magazines to kids]which dealt with ‘nudity,’ a category no more ‘narrow’ than killing and maiming. And in any event, narrowness and vagueness do not necessarily have any thing to do with one another. All that is required for vagueness purposes is that the terms ‘kill,’ ‘maim,’ and ‘dismember’ give fair notice as to what they cover, which they do.”
California could easily have specified specific violent content, or even based their law on the ESRB ratings, so the vagueness complaint is invalid: “It will often be easy to pick out cases at which California’s statute directly aims, involving, say, a character who shoots out a police officer’s knee, douses him with Cite as: 564 U. S. ____ (2011) 7 BREYER, J., dissenting gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head. (Footage of one such game sequence has been submitted in the record.) See also ante, at 14–15 (ALITO, J., concurring in judgment). As in Miller and Ginsberg, the California law clearly protects even the most violent games that possess serious literary, artistic, political, or scientific value. §1746(d)(1)(A)(iii). And it is easier here than in Miller or Ginsberg to separate the sheep from the goats at the statute’s border. That is because here the industry itself has promulgated standards and created a review process, in which adults who “typically have experience with children” assess what games are inappropriate for minors. See Entertainment Software Rating Board, Rating Process, online at http://www.esrb.org/ratings/&ratings_process.jsp (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file).
There was violence and sex in classic entertainment, but that doesn’t mean modern communities aren’t alarmed by what kids should have access to, be it violent or sexual content: “The Court relied on ‘community standards’ in Miller precisely because of the difficulty of articulating “accepted norms” about depictions of sex. I can find no difference-historical or otherwise-that is relevant to the vagueness question. Indeed, the majority’s examples of literary descriptions of violence, on which Justice Alito relies, do not show anything relevant at all. After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence. Indeed, sex “has been a theme in art and literature 535 U. S. 234, 246 (2002). For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.”
Even the video game industry doesn’t think kids should buy certain games, so why not the government? “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. §1746.1(c). 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.”
And if you think games are like books, well, that’s just not right. This law would not have affected books, movies and the rest. “The statute, if upheld, [is not]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. See ante, at 13–14 (ALITO, J., concurring in judgment) (citing examples of the increasing interactivity of video game controllers). 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.”
If you happen to believe games can teach, as the Army does, then surely the State should be worried about bad things games might teach: “California argues that when the teaching features of video games are put to less desirable ends, harm can ensue. In particular, 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 can typically passive media, such as books or films or television programs.”
This is the government’s business: “The interest that California advances in support of the statute is compelling. As this Court has previously described that interest, it consists of both (1) the ‘basic’ parental claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact ‘laws designed to aid discharge of [parental]responsibility,’ and (2) the State’s ‘independent interest in the well-being of its youth.’”
(If you thought the industry’s parental controls were sufficient, you were wrong): “The industry also argues for an alternative technological solution, namely ‘filtering at the console level.’ Brief for Respondents 53. But it takes only a quick search of the Internet to find guides explaining how to circumvent any such technological controls. YouTube viewers, for example, have watched one of those guides (called “How to bypass parental controls on the Xbox 360”) more than 47,000 times. See http://www.youtube.com/watch?v=CFlVfVmvN6k.
There is a possible double-standard in the Court’s ruling, one that says sex is bad but violence is okay, when it comes to protecting kids’ access to extreme entertainment: The majority’s different conclusion creates a serious anomaly in First Amendment law. [The]Ginsberg [case]makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But 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 a 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? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed-is also topless? This anomaly is not compelled by the First Amendment. It disappears once one recognises that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face.
“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.”
Well, readers, you’ve seen four arguments? Who was the most persuasive?
[Read the full 7-2 decision from which the above was excertped – PDF link.]
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