Video Gaming Celebrates a Supreme Court Victory

A California regulation that would ban the sale or rental of violent video games to minors met final defeat at the Supreme Court on Monday. The highest court in the land ruled that any level of government that would restrict the sale of violent video games to children (in this particular manner) would be in violation of the First Amendment right to freedom of speech. The law was first struck down by the 9th US Circuit Court of Appeals in Sacramento, and the decision to keep it that way was upheld by the Supreme Court in a resounding 7-2 vote.

The decision is being hailed as a victory for the gaming industry. Finally, say many gaming activists, thanks to the First Amendment ruling, video games are getting the same recognition as other forms of media, like movies, magazines and books. Had the decision gone the other way and the law had actually seen the light of day, retailers would have faced $1000 fines for selling violent video games to minors.

Antonin Scalia made the following observations of video games as they pertain to the First Amendment:

1. Video games are entitled to full First Amendment protection just like books or movies. 
2. The First Amendment forbids the regulation of violence. It does, however, allow for the regulation of sexually explicit material or obscenity.
3. Children, too, benefit from the First Amendment. In the past, the Supreme Court has allowed governments to broadly regulate obscenity through regulation of the sale of girlie magazines to children.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones... No doubt a State possesses legitimate power to protect children from harm. But that does not include a free-floating power to restrict the ideas to which children may be exposed."

- Supreme Court Justice Antonin Scalia

Despite the Supreme Court victory, the Justices themselves vary widely in their opinions of kids playing violent games – like Grand Theft Auto IV, a game that famously allows players to (virtually) seek the services of a prostitute, then murder her in cruel ways. It does so cleverly, without legally crossing into the obscene, showing no actual nudity and only inferring what goes on in that Buick-looking convertible in an alley somewhere in GTA's answer to Brooklyn.

I write this, of course, having had a lot of GTA IV experience; but I must make it clear that I only game as characters with the utmost moral bearing and have never sought the services of a prostitute nor murdered anyone that didn’t have it coming. Jeez, now I can hear my surrogate father Clint Eastwood telling me… “We all got it comin’, kid.” (Unforgiven, 1992) Yes, I’m a media junkie!

Back on point, Justice Samuel Alito voted against the California restriction, but gave the caveat that the law was too vague. A properly constructed law might well acquire his vote in the future.

Two Justices who voted in favor of the law were an unlikely pair – the right-wing Bush appointee Clarence Thomas and the liberal Clinton appointee Stephen Breyer. Polar opposites of the political spectrum, both agreed with the California law but from two very different perspectives.

Breyer believes in the authenticity of studies that claim violent video games can cause harm to children, and believes it's the government's job to regulate these games. A truly stereotypical liberal, nanny-state view.

"The closer a child's behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm," Breyer says.

Meanwhile, Thomas' position is effectively that children simply do not have a First Amendment right, period, and that free speech is the responsibility of the parent. To Thomas, in typical right-wing form, free speech is a family values thing.

The whole violent video games issue opens the door for a fascinating look into American culture. Basically, the way the law exists today, children are free (through media simulation) to torture and subsequently murder a woman in the most brutal ways possible, in an alley somewhere in the hard streets of Brooklyn, NY. But if said simulated torture / murder victim has a wardrobe malfunction resulting in a brief nipple exposure – obscenity laws instantly mobilize to protect the child!

I have written many times of the inherent mistrust humans have of new technology, and as a tech-marketing writer, maybe I'm biased toward technology's warm, 60Hz embrace. But the whole video game controversy reminds me of another controversy stemming from another technology developed long ago that was once new and equally mistrusted…

It was said to rot the minds of children, acts of congress attempted to stem its tide and it was unilaterally reviled by adults. I'm speaking, of course, of the pulp-publishing phenomenon known as comic books, which I for one, still enjoy today – mind rotting or not. I still don’t trust adults who profess to tell me what media is or isn't healthy to consume.

Emily Bazelon, of the New York Times, may have said it best: "In the 1800s, dime novels were blamed for juvenile delinquency. In the early 1900s, it was early movies; in the 1950s, radio dramas and comic books; and next came TV and music lyrics."