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"Violent Error: The Supreme Court's Mistaken Conception Of Violent Video Games" by Benjamin Pomerance

Violent Error: The Supreme Court's Mistaken Conceptions Of Violent Video Games

by Benjamin Pomerance

On June 27, 2011, the drawbridge was lowered, and the sacred ruler known as free speech entered a new castle in a previous undiscovered kingdom. The conquest of this virgin territory was made, oddly enough, by an armada of nine powerful people who seemed to know precious little about the weapons they were firing, although they knew beautiful strategic explanations for the reasons why they used them. Now that this new land is occupied, one can expect its conquistadors to remain for many years, perhaps even using it as a platform from which other previously inaccessible provinces can be reached. Yet now that this war is over and the ensuing occupation has begun, it is only appropriate to take a quick backward glance at the carnage that resulted and, more importantly, the consequences that this victory may cause.

The decisive battle was fought in the highest court in the United States. The combatants were the State of California, which in 2005 had passed a law authored primarily by state Senator Leland Yee that prohibited the sale or rental of violent video games to individuals under the age of 18, and a number of makers and manufacturers of such video games, led by the gaming giant Entertainment Merchants Association. And by the time the combat had concluded, the United States Supreme Court had ruled -- by a seemingly overwhelming 7-2 majority -- that such a law violated one of the holiest bedrock principles of the United States of America: the First Amendment guarantee of freedom of speech. Brown v. Entm't Merch. Ass'n, 564 U.S. __ (slip op., at 18).

Viewed through a lens of recent events, the decision was not surprising. In fact, it was almost expected, a perfect fit with the hard-line First Amendment free speech standards exhibited by the Roberts Court as of late. In some of the most controversial decisions in recent memory, the Supreme Court has held as unconstitutional state-driven attempts to strike down speech and expression that an average listener or viewer might consider hateful, odious, and disgusting. Picketing military funerals with placards bearing such slogans as "Thank God For Dead Soldiers" and "You're Going To Hell" was deemed to be speech protected under the First Amendment in an 8-1 vote. Snyder v. Phelps, 562 U.S. __ (slip op., at 15). Filming, producing, and selling "crush videos" graphically depicting animal cruelty was likewise held to be a protected area of expression, again by an 8-1 ruling. United States v. Stevens, 559 U.S. __ (slip op., at 7).

And at first glance, it seems that the Court's ruling in Brown is, like Snyder and Stevens, another gut-check moment in which our devotion to the First Amendment is tested, and we, as a nation, must hold firm to our founding freedoms. "Speech is powerful," Chief Justice John Roberts wrote in the majority opinion in Snyder v. Phelps. "It can stir people to action, move them to tears of both joy and sorrow, and -- as it did here -- inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate." 562 U.S. __ (slip op., at 15). More eloquent words may have never been written about the need to prevent the passage of laws that strike down speech that "we do not like." The United States of America was founded as a safe haven for free thinkers, a place where theories and beliefs and ideals could be discussed, debated, and even contradicted without fear of governmental persecution. To pass a law that inhibits speech on subjects that certain people personally find hateful is a gross departure from the most essential ideals of our nation.

Yet the law and the events at issue in Brown contain a few fundamental differences from the circumstances in cases like Snyder and Stevens, distinctions that unfortunately were dismissed after only a cursory examination in the Court's majority opinion by Justice Antonin Scalia. Two aspects of the California law and the conduct it was designed to proscribe were largely disregarded by the majority: the unique way in which people interact with the speech in question and the class of people to whom this expression was denied. The Court's inability (or unwillingness) to grapple with these areas of the case resulted in a stretching of the boundaries of the First Amendment into an area where it is not meant to go.

First, it is a common error to believe that all speech and expression receives absolute protection under the First Amendment. For instance, the First Amendment is not breached by a law that bans speech that is inherently likely to incite imminent lawless action (i.e., a riot). Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969). Knowing and malicious defamatory statements also do not receive First Amendment protection. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Speech or expression that is deemed "fighting words" -- expressions that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" -- are likewise outside the scope of the First Amendment's reach. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Speech that falls within these categories, as well as certain other narrowly-defined classes, can therefore be outlawed by the federal government or the governments of any state without any violation of the First Amendment.

Bearing this in mind, the language of the California statute that sparked this controversy takes on deeper meaning. The Act prohibited the sale or rental of "violent video games" to minors, stating that the banned games included those "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a way that a "reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest in minors." Cal. Civ. Code Ann. §1746 (d)(1)(A) (West 2009).

Such language clearly is derived from a line of Supreme Court cases regarding the prohibition of "obscenities," another category of speech that is unprotected by the First Amendment. See Miller v. California, 413 U.S. 15, 24. Under the test formed by the Court in Miller, a work is considered "obscene" if "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest" and if it "depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law." Id. The Court also included an exception, allowing First Amendment protection to such a work if it, taken as a whole, contained "serious literary, artistic, political, or scientific value." Id.

In his opinion, Justice Scalia distinguished between the situation in the case at hand and the circumstances in Miller and its progeny. The obscenity exception, Scalia wrote, applies only to depictions of "sexual conduct." Brown, (slip op., 4-5). Speech or expression about violence, he continued, must not be allowed to be "shoehorned" into obscenity. Id. To do so, he indicated, would result in a chilling effect on speech in which legislatures could outlaw any form of expression that they found offensive because it described or depicted violent acts. Id. at 6. Expressions of "sexual conduct" (i.e., pornography) may be outlawed as obscene; any other forms of speech may not be banned under these grounds. Id.

Using this rationale, Scalia easily brushed aside California's reliance on the Court's decision in Ginsburg v. New York, in which the Court upheld a statute prohibiting the sale to minors of depictions of "nudity, sexual conduct, sexual excitement, or sado-masochistic abuse." 390 U.S. 629, 646 (1968) (quoting N.Y. Penal Law §484-h(1)(f)). Such a prohibition was constitutional, Scalia wrote, because the banned materials were "harmful" in appealing to the "sexual interests" in minors, and because depictions of sexual conduct was obscenity and thus "not protected expression." Brown, (slip op., 6). The key to the New York statute in Ginsberg, according to Scalia, was not that it was designed to protect minors, but rather that it was designed to protect minors from depictions of sexual acts. See Id. (emphasis added). Yet banning the sale of violent video games to minors were "something else entirely." Id. Since the California statute's primary focus was on violence, not sex, the video games were not obscenities, and thus were afforded First Amendment protection. Id., (slip op., 6-7).

This presents a paradox which is nothing short of bizarre. Under this rationale, depictions of sexual acts can be banned to people of all ages without violating the First Amendment, but a law prohibiting children from purchasing interactive games in which they can engage in creating the virtual depictions of "killing, maiming, dismembering, or sexually assaulting" another human being is unconstitutional. Cal. Civ. Code Ann. §1746 (d)(1)(A) (West 2009) (emphasis added).

Not surprisingly, this contradiction was detected by Justice Stephen Breyer, who addressed the issue pointedly in his dissent. "But what sense does it make to forbid selling a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that same 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Id., (slip op., Breyer, J., dissenting, 19).

Other commentators have picked up on this as well. As one Court-watching journalist bluntly wrote, "No problem there, in the view of the Court: for children who want to simulate brutal homicide, it's protected free speech. Sex, not so good. Naked women. Naked men. Fornication. Ewww!" Timothy Egan, Sex and the Supremes, N.Y. TIMES, July 7, 2011, http://opinionator.blogs.nytimes.com/2011/07/07/sex-and-the-supremes (last visited August 6, 2011).

Naturally, this is not meant to be a defense of the sale of pornographic materials. Instead, it asks a key question: What makes the sale of pornographic materials to minors so much more egregious than the sale of violent video games to minors? Or, phrased another way, why is a ban on the sale of pornographic materials to minors constitutional but a ban on the sale of violent video games to minors unconstitutional? As evidenced by the Court's recent and rightful history of staunchly upholding the principles of the First Amendment, and also by the four very divergent opinions issued in this case (Justice Samuel Alito wrote a concurring opinion in which Chief Justice Roberts joined, and Justice Clarence Thomas and Justice Breyer wrote separate dissents), these are not a simple question to answer.

Perhaps the answer would have been slightly easier -- and led to a different outcome -- if the justices belonged to a different age bracket. Many analysts criticize studies of the psychological effects of video games because the studies are conducted by people who know nothing about video games and lead to comparisons that seem utterly ridiculous to even casual "gamers." See Maisonneuve, Why Video Game Research Is Flawed, http://maisonneuve.org/pressroom/article/2009/may/25.html (last visited July 16, 2011). In a way, the same could be said for the Court. At the time of this decision, the youngest justice on the Supreme Court bench was Justice Elena Kagan, at age 51. The oldest member of the Court was Justice Ruth Bader Ginsberg, at age 78, with Justice Scalia just behind her at age 75. All three sided with the majority. And given their age and social status, it is unlikely that these justices -- or any of the other justices on the Court -- spend much time playing video games, violent or otherwise. It is equally unlikely that they watch others playing these games or speak with many people who regularly engage in such activities. As a consequence, the justices had little knowledge of what these games are, what they show, how they are played, and other vital pieces of practical information. This lack of consideration of information of this nature may have altered the entire outcome of the case.

The first misconception surrounding these games is the generic name that is applied to them. In what has become a blatant euphemism, we call these games "video games." This conjures up a natural mental correlation with videos; hence, Scalia's heavy reliance on the Court's recent decision in Stevens, the animal cruelty "crush videos" case. The difference between sitting on a couch watching a video on television and leaning forward on a couch clutching a controller in your hand that allows you to control the outcome of the virtual game you are playing, however, is day and night.

Watching videos, like reading books and listening to music, is largely a passive experience. Playing "video games," on the other hand, is a dominantly active experience. The player is in control. In the most recent games -- which fit the description of "role-playing games" or "interactive gaming experiences" far better than the outdated label of "video games" -- the advanced graphics, intricate plot-lines, and realistic responses of the on-screen avatars surround the player with a virtual world, a virtual reality that can quickly start to feel like reality.

In the videos afforded First Amendment protection by the Court in Stevens, purchasers did not have the option of whether to inflict cruelty on animals or a choice of what methods of brutality to use. In the games at issue in Brown, however, players had plenty of choices at their disposal of whether to kill, rape, torture, and maim other characters in the game, along with a sickening menu of options of how they could do it. The outcome of the game, and the fate of the people in it, rested quite literally in the player's hands.

This is why many people were puzzled when they read the majority opinion and learned that Scalia was comparing these violent video games to reading fairy tales. In a lengthy and somewhat baffling discussion, he described books read by children from Brothers Grimm folk legends to William Golding's The Lord of the Flies, detailing descriptions of violence in these literary works at every available opportunity. See Brown, (slip op., 8-9). He also noted that prior attempts to ban the sale of violent movies and violent comic books to minors have failed before the Court. Id. (slip op., 9-10). Finally, he swept aside the notion that playing a violent video game and reading about birds pecking out the stepsisters' eyes are "different in kind," dismissing California's argument that the interactive nature of these games puts them into a separate category altogether. Id., (slip op., 10-11). Good literature, Scalia wrote, is always "interactive," drawing the reader into the story and making him or her feel an emotional attachment to the characters and their adventures. Id. Banning the sale of violent video games to minors, he seems to be implying, would also mean opening the door to laws that ban the sale to minors of books and movies with violent scenes.

This seems to be a staggering mis-characterization of reality. Again, it omits one glaring, crucial fact: In a book or a movie, the viewer is not in control. In an interactive game, the player is in total control, able to do anything that is made available by the game's creator. It is difficult to fathom how reading a tale by the Brothers Grimm, no matter how realistically it is crafted, would evoke the same feelings as pointing a gun at a virtual victim's head, pulling the trigger, and watching his or her blood splatter across the screen. The two experiences are completely different. This is why people with little patience for sitting down and reading a book -- even a brilliantly-written book with vivid descriptions -- turn to video games in the first place. They want a heightened sense of first-person activity, the thrill of their own chase, and interactive video games provide this to them. And in the case of the violent video games sought to be kept from minors by this California law, this chase tends to end with the interactive experience of killing, maiming, dismembering, or sexually assaulting another human . . . with you as the first-person perpetrator. No storybook ever provided such an active sensation.

Scalia correctly writes that it would be unconstitutional to proscribe such speech merely because we believe it to be distasteful. Brown, (slip op. 11). Yet this is the right remedy for the wrong disease. The California statute did not issue an absolute ban on the sale of violent games within state borders. Instead, it prevented the sale of these games to a particular segment of the population: people under the age of 18. This law, therefore, never enters the domain of trying to ban a particular area of speech. Rather, it is one of an incredible number of examples of efforts throughout the nation to protect children.

America has a history of saving children from themselves. In most states, children of a certain state-established age cannot vote in elections or purchase alcohol or tobacco products. Many states impose mandatory school attendance until a particular age. States typically forbid minors from purchasing and using firearms. Statutes that limit the age at which children may seek employment and then further regulate the types of jobs which they may do until a specified age are also commonplace today. And from the Ginsberg case, it is clear that state laws banning the sale of pornographic images to minors are quite prevalent as well.

States pass such laws because they believe individuals of a certain age lack the emotional and cerebral maturity necessary to engage in such activities. Legislatures have deemed, by whatever methods they see fit, that "minors" should thus be limited in what they can do. Plenty of artistically-inclined children may prefer to be outside by a lake painting a landscape scene on a beautiful April morning, but states with mandatory school attendance laws prevent them from doing so. Many children may want to smoke cigars or drink vodka or buy pornographic magazines when they are 12 years old, but states with tobacco and alcohol laws stop them. An enterprising child from an impoverished family may yearn -- and even need -- to get a job working in a factory to help his parents put bread on the table, but states with laws governing the employment of minors will tell that child no.

Such prohibitions are ways in which states protect children from choices which they are likely not mature enough to make, activities in which they probably are not ready to engage, experiences which they are presumed not to be prepared to handle. As Justice Thomas wrote in his dissent, children were never even assumed to be part of the First Amendment at the time it was written, an era when youngsters were barely even permitted to speak without first going through their parents. Brown, (slip op., Thomas, J., dissenting, 20). The history of our nation shows a long tradition of prohibiting children from activities in which we do not believe they are mature enough to engage.

It is therefore difficult to understand why the California legislature should not be permitted to pass a law banning minors from an activity which, in the judgment of that legislature, could be harmful to them. The Court, in essence, is questioning the wisdom of the elected officials of that state in their decision about how to best protect the state's young people, a historically safeguarded portion of the population. Scalia asks this question largely by pointing out the fact that California cannot show a direct causal link between violent video games and harm to minors. Id. (slip op., 12). He writes that California relies primarily on the research of "Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children." Id. Such research, he writes, does not conclusively show that playing video games causes children to act more aggressively. Id.

Justice Scalia ignores the fact that there are actually a significant number of studies that indicate a correlation between children playing violent video games and those same children exhibiting violent or aggressive attitudes. Many of these studies are authored by individuals other than Dr. Craig Anderson. See, e.g., Kristin Kalning, Violent Video Games Put Teens At Risk, in TEENS AT RISK, Watkins, Christine (Ed.), Farmington Mills, MI: Greenhaven Press, 2009; Hanneke Polman et al., Experimental Study of the Differential Effects of Playing versus Watching Violent Video Games on Children's Aggressive Behavior, AGGRESSIVE BEHAVIOR, Vol. 34(3), May-June 2008, pgs. 256-64; Xiao-Li Guo & Guang-Rong Jiang, Review of the Effect of Violent Video Games on Children and Adolescents, CHINESE JOURNAL OF CLINICAL PSYCHOLOGY, Vol 15(2), April 2007, pgs. 188-190; Kirstie M. Farrar et al., Contextual Features of Violent Video Games, Mental Models, and Aggression, JOURNAL OF COMMC'N, Vol. 56(2), June 2006, pgs. 387-405.

Justice Scalia is absolutely right in his assertion that none of these studies conclusively show that playing violent video games causes young people to become more violent. Given that the first scientifically valid studies in this area did not emerge until the late-1980s, this lack of conclusive proof comes as no surprise. The Court, however, has not always engaged itself in this role of evaluator of the validity of social science studies. For instance, in Ginsberg, a decision of which Justice Scalia clearly seems to approve, the Court continued its steadfast refusal to give First Amendment protection to sexual "obscenity." Yet there are some leading studies showing that there is no conclusive causal link between viewing pornography and deviant behavior. See, e.g., Berl Kutchinsky, Law, Pornography, and Crime, Oslo: Pax Forlag, 1999. Even still, the Court found no problem in upholding the statute prohibiting the sale of such materials to minors, despite the existence of strong scientific evidence indicating that viewing pornography did not conclusively cause detrimental behaviors. It is difficult to understand why the Court could not do the same in Brown.

Supporters of the Court's ruling in Brown have stated that the video game industry has a rather strict rating system, which indeed it does. See, e.g., Gabriel Perna, Supreme Court Got Violent Video Game Ruling Right, INT'L BUS. TIMES, www.ibtimes.com/art/services/print.php?articleid=171750.html (last visited July 16, 2011). The Entertainment Software Rating Board rates each game as either Early Childhood, Everyone, Everyone 10+, Teen (13 and older), Mature (17 and older), and Adults Only (18 and older). Id. Merchants within the industry are required to ask for identification from prospective buyers and to refrain from selling games to customers who are under these age limits under these "self-regulation" standards. Id. Arguably, this should be enough to keep violent video games out of the hands of minors.

Yet these ratings work only in a perfect world -- and human beings, as James Madison told us long ago in The Federalist Papers, are not angels, making government necessary. The ultimate gatekeepers of these industry ratings are not the industry executives, but the owners of individual video game stores. In the end, there is a good chance that the minimum-wage cashiers at these stores might not want to be bothered with asking every customer who buys an Adults Only game for their identification just because some industry standard demands it. Making the restricted sale of violent games a state law, as California did, gives teeth to the basic principle of keeping such games away from young people who are not meant to play them. In a sense, the state's statute only reinforced what the industry was apparently trying to do all along: keep extremely graphic, violent, "mature" games out of hands of children.

Finally, advocates of the majority's holding in Brown could claim that permitting the California law to stand would open the floodgates to future anti-free speech legislation. If violent video games can be banned for minors, this argument goes, then there is nothing to stop laws that prohibit violent books or movies or music. Such a concept, however, is baseless. To begin with, as established above, interactive video games are categorically different from books, films, or songs. And nothing would prevent the Court from specifically stating that a ruling in favor of the California law is limited exclusively to the circumstances of this case.

Indeed, the Court has frequently done so in First Amendment matters, as recently as this year in Snyder, the military funerals protest case. Writing the majority opinion for the Court, Chief Justice Roberts stated that the "holding today is narrow . . . the reach of our opinion here is limited by the particular facts before us. As we have noted, 'the sensitivity and significance of the interests presented in clashes between the First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instance case." Snyder, (slip op., 14) (quoting Florida Star v. B.J.F., 491 U.S. 524, 533 (1989)). In light of such recent First Amendment precedent, Justice Scalia's "slippery slope" argument about violent video games legislation leading to a landslide of unnecessarily restrictive laws seems rather unnecessary.

The essential question, of course, is not what might have been done, but rather what might come next, now that this case is over. With First Amendment protection now extended into the realm of violent video games, the Roberts Court has once again proven that they will fight fiercely against anything perceived as a threat to freedom of speech and expression. Yet this decision proved that the Court's views on the First Amendment are more varied than Court-watchers might have previously suspected.

In Brown, two "originalists" -- Scalia and Thomas -- took completely opposite sides, with Scalia vehemently opposing the law and Thomas upholding it on the basis of a lack of original intent for the First Amendment to extend to children. Justice Breyer, who voted with the majority in Snyder and in Stevens, passionately opposed the Court's decision to strike down this law, pointing out the interactive nature of the games and the state's vested interest in protecting its children. Justice Alito, the lone dissenter in Snyder, continued his cautious approach toward free speech in his concurring opinion, in which he agreed with Scalia that the language of the California law was overbroad but specifically spoke of allowing violent video games to minors as an apparent social evil that states should be allowed to limit.

Perhaps most interestingly of all, though, is the fact that Chief Justice Roberts joined with Alito on his concurring opinion. The fact that such an ardent defender of free speech rights would, under these circumstances, endorse Alito's statement that he "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem" provides a surprising potential opening for attorneys seeking to defend such state statutes in the future. Brown, (slip op., Alito, J., concurring, 17).

Given the widely varied nature of the Court's opinions on this case, it would not be shocking if the California legislature or the legislature of another state were to wage this battle again. Justice Alito's concurring opinion certainly indicates that both he and the Chief Justice could be swayed in favor of a statute banning the sale of violent video games to minors, provided that the statute was more narrowly defined than this past attempt. Such a shift would then bring the case to a 5-4 vote against the statute, with Justice Anthony Kennedy, the Court's most notorious swing voter, one of the five on the majority's side. And given Justice Kennedy's propensity for changing his mind on certain issues, one could certainly see a future case on this matter swinging the other way -- which, in the view of this author, it should, although only for the specific circumstances of this case: a law that bans the sale of interactive experiences of violence to minor children.

For now, though, the battle is over. The First Amendment, for better or for worse, now holds dominion over previously uncharted territory. Nobody knows what will happen now that it is there. All we can do is wait.

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This page contains a single entry from the blog posted on August 15, 2011 8:49 PM.

The previous post in this blog was "Legal Advice For Sale: Protecting Lawyers And Laypersons Against The Unauthorized Practice Of Law" by Nathan Perry.

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