Less than a week after the Supreme Court refused to carve out an exception from the 1st Amendment for videos depicting real violence against animals, it has agreed to consider California's argument that it should withhold constitutional protection from virtual violence against people. The justices will review a sensible decision by a federal appeals court striking down a state law punishing the sale of "violent video games" to minors. We hope a majority of the court recognizes that the principle in the two cases is the same — that even offensive speech is protected by the 1st Amendment.
The measure struck down by the U.S. 9th Circuit Court of Appeals was well intentioned but the wrong response to the exposure of children to games such as Grand Theft Auto. Under the law, a 4-square-inch label reading "18" would have to be affixed to violent video games. Anyone who sold such a game to a minor could be fined as much as $1,000. The state never made a convincing case that criminalizing the sale of such video games was the only or the best way to protect children from content unsuitable to their age. As a matter of policy, the Legislature should have left that task to parents, aided by a voluntary rating system.
But the video-game law challenged the longstanding constitutional doctrine that speech can be abridged only when there is a compelling government interest furthered by a narrowly tailored law. The 9th Circuit concluded that the video-game law failed that test. Proponents of the law justified it by citing assorted studies linking violent video games to greater aggression in children, but the court noted that none of the research established a causal link. In fact, the court observed, "some of the studies caution against inferring causation."
The state had another argument, however, which it is expected to press on the Supreme Court. Essentially, it is a plea for the courts to treat violent content as a form of obscenity. In a 1968 case, the Supreme Court upheld restrictions on the sale to minors of "girlie magazines" that wouldn't be considered obscene if sold to adults. The 9th Circuit declined to extend that exception to video games, pointing out that obscenity has been denied constitutional protection because it involves the narrow category of sexual titillation. For the court to allow violent video games — or films, books or magazines — to be regulated in the same way would create a gaping loophole in the 1st Amendment.
Last week the Supreme Court declined to create a similar exception to the 1st Amendment for depictions of cruelty to animals. It should show the same solicitude for free speech when it considers the video-game law. Then parents can play their proper role, by taking control of the joystick.