The rejection by the U.S. Supreme Court of California's video game law was a welcome victory for free speech, but a frustrating defeat for the protection of young people.
In striking down the 2005 law - that was never actually implemented due to legal challenges - the Court continued its campaign to safeguard the First Amendment. Last year, it ruled 8-to-1 against a federal law prohibiting depictions of animal cruelty such as those in videos about dog fighting.
But the 7-2 decision voiding the video game law leaves open serious questions. When should First Amendment privileges be suspended for the protection of children? Should a modern interpretation of "obscenity" include violence and not just sex? At what point will ultra-realistic video games be more akin to actual violence and less like the fiction of an earlier era?
These are troubling issues, about which the Supreme Court remains conflicted.
When it comes to protecting children, society takes a wide range of prudent steps - covering everything from voting, to driving, to drinking. Obscenity laws, too, are different for kids, as affirmed by the 1968 Supreme Court ruling that upheld limits on access to sexual materials by minors.
But Justice Antonin Scalia, writing the majority opinion in the video game case, stressed that depiction of violent acts has never been restricted, even for kids. That may be legally correct, but it is morally flawed.
As Justice Stephen Breyer said in his dissenting opinion, "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 the 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?"
The Court noted that research on the effects of video games is inconclusive. But many types of causes and effects are difficult to pin down scientifically, which is why the debate raged for decades about the dangers of tobacco, and rambles on today about climate change. Psychologists face a particularly difficult challenge in evaluating the impact of video gaming because the technology is evolving so rapidly.
Like the definitions of obscenity, which were so subjective at the time of the landmark 1968 ruling as to include the term "girlie magazines," a reasonable evaluation of video violence may hinge more on intuitive reasoning and community standards than on laboratory results. The fact that the U.S. military uses video games for certain forms of combat training should provide a clue about their power.
Here's the crux of the problem, in the very words of Justice Scalia: "Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct.'" That postulate, when children are involved, is shortsighted.
What does it say about society that extreme graphic violence is acceptable for young people, while sex is obscene?
Justice Samuel Alito voted against the California law despite his concern that the violence in modern video games "is astounding." He said the statute was poorly written, giving too broad a definition of objectionable violent content. However, Alito seemed to suggest that California legislators could draft a new law spelling out more clearly the narrow range of video violence that should be off limits to kids. They should.
Alito wisely added, "developing technology may have important societal implications that will become apparent only with time."
Safeguarding free speech and protecting our children need not be in conflict. However, waiting for scientific evidence of the "societal implications" about which Justice Alito warns, is a game that responsible adults cannot afford to play.
Peter Funt is a writer and public speaker and may be reached at www.CandidCamera.com
RationalHuman posted at 4:17 pm on Fri, Jul 1, 2011.
"a frustrating defeat for the protection of young people"
How so? the protection of young people?? - THAT'S WHAT PARENTS ARE FOR.
"These are troubling issues"
Yes, VERY troubling...the government overstepping its bounds, and incompetent parents fueling the issue.
Mr. Funt, please go back to Candid Camera - at least there your lack of critical thinking skills didn't affect your "work" - NO LAW WAS EVER NEEDED BECAUSE THE STORES VOLUNTARILY ADOPTED POLICIES WHICH FORBID THE SALE OF THESE VIOLENT GAMES TO MINORS...WHO THEN GET MOMMY OR DADDY TO BUY THE GAME FOR THEM. How exactly would a law stop THAT, HMMM?
RationalHuman posted at 6:00 pm on Fri, Jul 1, 2011.
"What does it say about society that extreme graphic violence is acceptable for young people, while sex is obscene?"
Whatever it says, it's been saying it since the 1930s - and I don't see anyone from that generation claiming to be violent killers because of it.
Don't believe "extreme graphic violence" existed back then?
Do a simple Google search for "1930s era Three Stooges" and "Vintage Tom and Jerry cartoons" - as much (if not more) graphic violence than today!
sockratties posted at 8:46 am on Sat, Jul 2, 2011.
Sure, kids need to be protected from excessive ANYTHING, including violence, horrific images and graphic relationships with farm animals. There’s an old fashioned idea called parenting. It’s not used a lot anymore, although considered by some to be somewhat quaint, it seems to work. Parents actually pay attention to what the kids are doing, counsel them and protect them from the perils of society until they are able to make decisions themselves.
Children are going to get advice and influence from someone. Should it be their peers and game marketing or should it be their parents? The internet, peers and video game marketing are all there to take over when parents are too lazy or disinterested to do their job. And if they aren’t competent to be parents they shouldn’t have kids.
Rich posted at 8:49 am on Sat, Jul 2, 2011.
I'm not sure you understand the First Amendment. I can fill this page with banned books. Some, such as Pistis Sophia, carried the death penalty. Some, such as De Sade's Justine, were sought out and burned by the largest army of it's time. Yet they are in your local library and certainly available. History taught our founders that censorship was beyond the scope of government, and attempts to do it counter-productive. What is censored above ground, simply becomes more popular below it and actually adds to its popularity. Our founders therefore chose the tactic of ignoring it. This actually works a lot of the time. Books, video games, etc. are not easy to sell, however one of the best ways to sell them to a mass audience is to have some authority ban or limit them. The First Amendment is, in itself, simply a rather effective form of censorship, the most objectionable material is ignored, unless the government puts 'be stupid' on top of their list of things to do today, and sells it, by banning or limiting it.