Yes, Violent Video Games are Protected by the First Amendment

Supreme Court

Tomorrow the Entertainment Software Association will stand before the Supreme Court and argue on behalf of the video games industry that video games are protected by the same First Amendment rights as music, books, and movies. The law they'll be arguing against involves an attempt by California's legislature, signed into law by governor Arnold Schwarzenegger, to ban the sale of "violent video games" to minors.

Were the law to pass, stores found in violation of selling such games to minors would be subject to a $1,000 fine.

What's a "violent video game"? According to the California law, a game which depicts the "killing, maiming, dismembering, or sexually assaulting [sic] of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors." If this first "prong" applies, it's then run through a second check that asks whether "the patently offensive, deviant level of violence causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors."

The law, known as AB 1179 and passed by California's congress in 2005 has already failed the judicial litmus test twice. In 2005, a U.S. district judge blocked the law before it could go into effect, arguing that it unconstitutionally restricted minors' rights and--just as importantly--questioned links posited by the law's proponents between "exposure to violent video games" and "psychological or other harm to children."

And again in 2009, three judges on the 9th U.S. Circuit Court of Appeals upheld the district court's ruling that the law was unconstitutional. The law, wrote Judge Conseulo Callahan, "violates rights protected by the First Amendment," citing California's inability to demonstrate "a compelling interest" and arguing that "less-restrictive means" exist "that would further [California's] expressed interests."

That should have been the end of it. But on April 26, 2010, the Supreme Court did something many thought it wouldn't, agreeing to hear the case despite clear accord between the lower courts on challenges to the ban's legality.

So tomorrow, the same day we're voting in the midterms (don't forget to), the Supreme Court will begin the process of deciding whether video games are analogous to "alcohol, tobacco, firearms, driver's licenses and pornography" (as California senator Leland Yee argued in a friend-of-the-court brief).

Does the First Amendment bar a state from restricting the sale of "violent video games" to minors? As usual, straight appeals to the Constitution are problematic. All the First Amendment prohibits is passage of a law that would infringe on freedom of speech. As anyone knows, not all speech is free. Crying "fire" in a movie theater certainly isn't. Neither is going to most jobs, restaurants, retail stores, or pretty much all public spaces in your birthday suit.

So are video games, violent or otherwise, a form of protected speech? And what about this so-called research connecting "violent video games" to increased aggression and/or socially maladaptive behavior?

To the first, my answer's yes, of course it is, but I'm not a lawyer, and since this case hinges, as usual, on legal semantics, technicalities, and perhaps most of all on precedents established in other prior cases, the best place to go for a friendly breakdown of the particulars is Michael Dorf's "The Supreme Court Considers Free Speech and Violent Video Games" over at Findlaw. You should also give Julie Hilden's incisive May 2010 piece "The Supreme Court's 'Violent' Video Games Case" a read. That's if you want the expert opinion and not Google News's pundit churn.

As for "violent video games" and their ability to influence socially deviant behavior, on Friday September 17th, a coalition of 82 scholars in the social sciences, medical sciences and media filed an amicus brief to the Supreme Court concerning the case. The brief addressed the scientific studies cited in the case and found them unsupported by current data.

"The courts were right to reject these studies because they do not even establish the 'correlation' between violent video games and psychological harm to minors that California says exists, let alone the causation of harm that, as respondent explains, the First Amendment requires," argues the brief. "Nor do the studies show a connection between playing violent video games and violent or aggressive behavior of minors, which explains why California disclaimed that interest below."

The brief in turn points to more recent studies that it argues use "well-validated" outcome measures--in contrast to the studies cited by the California law--which control for "third" variables, and says these studies find little evidence for a relationship between violent video games and youth violence.

So while you're voting tomorrow (again, don't forget to!) keep your eyes on the news for updates on this one. The ESA's holding a conference call after oral arguments conclude, and we'll be reporting what goes down.

This one's important. Okay, really important. A victory for the games industry is synonymous with a victory for the scientific method. You know, as opposed to that other all-too-recurrent knee-jerk conclusion-jumping one.

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