On Tuesday, the Supreme Court will hear arguments about the constitutionality of a California law making it illegal to sell or rent "violent" video games to minors. A ruling for the video-game industry would be consistent with the court's past holdings in 1st Amendment cases; a victory for the state would jeopardize free speech in settings far removed from a video store or a teenager's bedroom.
The law requires that a label reading "18" be affixed to games that allow a player to engage in "killing, maiming, dismembering or sexually assaulting an image of a human being" and that, in the eyes of a reasonable person, appeal to the "deviant or morbid interest of minors." To merit the label, the videos also must be patently offensive and devoid of "serious literary, artistic, political or scientific value for minors." Anyone who sold or rented such a game to a minor could be fined as much as $1,000.
This page believes that the law is neither wise nor necessary, and that it's the responsibility of parents, aided by a voluntary ratings system, to protect their children from entertainment they consider inappropriate.
But the issue for the court isn't whether the law is good policy but whether it violates the 1st Amendment, as the U.S. 9th Circuit Court of Appeals concluded.
In resolving that issue, the justices are likely to address at least three questions: Do video games qualify as "speech" protected by the 1st Amendment? Should the court treat video violence the same way it would treat obscenity? Finally, has California proved that this constitutes a real problem and, if so, that the ban on video sales to minors is the only solution? The wrong answers to these questions from the court could make free speech less robust.
• The first question is the easiest to answer. Like films, television programs and comic books (which were the target of self-proclaimed children's advocates in the 1950s), video games tell a story, albeit one in which the player becomes involved.
No one would confuse "Grand Theft Auto" with "Hamlet," but that's irrelevant. A 1948 Supreme Court decision striking down a New York law that banned the sale of lurid crime magazines made it clear that such publications "are as much entitled to the protection of free speech as the best of literature." The same is true of video games.
• In asking the court to show deference to the California Legislature's decision-making, the state cites a 1968 decision upholding a New York law against the sale of sexually explicit material to minors. In that case, the court held that material could be judged obscene as to minors even if it wouldn't be considered obscene for an adult. California urges that the court adopt a similar two-tier approach to violence, because "just like sexual material, violent material can be harmful to the well-being of minors."
The problem with this argument is that it would require the court to conclude that fictional violence in general is outside the protection of the 1st Amendment, just as it has concluded in the past that obscenity is. Earlier this year, in striking down a ban on the sale of videos that showed violence against animals — real animals, not images on a computer screen — the Supreme Court declined to declare a new exception to the First Amendment for such depictions. Nor should it carve out a new exception for fictional or virtual violence.
•The state believes it can prevail by arguing that protecting children from violent video games is a compelling interest and that there is no alternative approach that would be less restrictive of free speech. The linchpin of the argument is the claim that violent video games are harmful to children.
The state cites several organizations for the proposition that "entertainment violence has negative impacts on children" and refers to studies that it says "conclusively establish a connection between playing violent video games and increases in aggressive behavior in children." For example, in one study, college students were asked, "Wheel of Fortune" style, to fill in blank spaces with letters to form either aggressive or nonaggressive words ("explode" rather than "explore"). Students who played violent video games were more likely to choose the aggressive word.
The 9th Circuit concluded, however, that none of the research "establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable." The state argues that it shouldn't have to prove a "direct causal link." In a free-speech case, that is exactly what the court should demand. Otherwise all sorts of speech would be at the mercy of the latest social science study.
Finally, even if protecting children from violent video games were a compelling state interest, the appeals court said the state could pursue that goal in ways that didn't restrict speech — for example, by publicizing the video-game industry's voluntary ratings system or encouraging the use of technology that allows parents to screen out videos they find offensive.
In short, a well-intended law aimed at what seems like a narrow issue could undermine free speech in ways the authors didn't intend. The court shouldn't allow that to happen.