26 Aug Violent Video Games vs. Free Speech: How serious are we about protecting children?
The video game industry is making billions off of selling our children their products. If a U.S. Ninth Circuit Court of Appeals decision is allowed to stand, video game manufacturers can continue to sell children games that feature decapitation, mutilation, and other mind-numbing images of violence and sexual depravation.
In 2005, the California legislature passed California Civil Code Sections 1746-1746.5 prohibiting the sale or rental of these violent video games to minors under 18. The law defines a violent game as one that includes “killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that a reasonable person would find appeals to a “deviant or morbid interest,” is patently offensive, and lacks “serious literary, artistic, political, or scientific value for minors.” A fine of as much as $1,000 could be assessed to retailers who violate the law.
The statute was immediately challenged in court by the Entertainment Merchants Association and this spring the Ninth Circuit ruled on behalf of the plaintiff, and found the statute to be unconstitutional because it “violates freedom of speech” of minors. The U. S. Supreme Court will be taking up the case this fall.
What is the content of some of these violent and sexually explicit video games?
We apologize in advance for such unsavory descriptions. According to an amicus brief filed in support of the new California law by eleven states’ Attorney Generals (Louisiana, Connecticut, Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Mississippi, Texas and Virginia), video game players engaged in virtual activities such as:
– Burning people alive with gasoline or napalm;
– Decapitating people with shovels and have dogs fetch their severed heads;
– Beating police to death while they beg for mercy;
– Killing bald, unshaven men wearing pink dresses (in an “expansion pack” called Fag Hunter);
– Slaughtering nude female zombies;
– Urinating on people to make them vomit;
– “Running with Scissors” (name of video game) which is promoted by the tag line: “[R]emember… it’s only as violent as you are…”
– An “Easter Egg” called “hot coffee” (as a reward for reaching a particular level) leads to simulated sexual intercourse between the main character and his girlfriend.
Quick perusals of articles written by media outlets like the LA Times, The NY Times, and Washington Post reveal some typical arguments in support of the video game industry’s position. We offer a few rebuttal points and encourage you to read the various Amicus Briefs submitted regarding California’s new law.
1. The statue is a violation of the rights, particularly freedom of speech rights, of minors.
Video games are role-playing activities that do not constitute free speech. Courts have never held that video games are free speech; it not established “expressive conduct” that is protected under the First Amendment. In addition, minors’ freedom of speech is legally and regularly curtailed; such as schools banning particular types of speech.
Playing a video game is conduct and there are numerous legal controls on the conduct of minors. Conduct such as voting, marriage, military service, consent for healthcare, curfews, sentencing guidelines; all involve legal treatment of minors that is dramatically different than treatment of adults under the law.
“If a state may restrict a minor’s right to vote or to marry, then it may also restrict her ability to purchase graphically violent video games. If a state may not impose the death penalty on minors–because they are “more vulnerable … to negative influences and outside pressures,” Roper v. Simmons, 543 U.S. 551, 569 (2005)–then a state may also keep them from buying games which invite them to commit digital atrocities.” (States’ Brief)
States regulate access of minors to such things as gambling, pornography, cigarettes, and alcohol. Facilitating parental control over their children’s access to violent video games certainly has precedent within constitutional law. In addition, the California statute does not prohibit anyone from playing these video games (adults or children), but stops the selling or renting of these games to children. If a parent chooses to buy/rent the game for their child, they are able to do so.
2. There is not enough evidence of a “causal link between minors playing violent video games and actual psychological or neurological harm.”
This is a situation of which studies do you choose to believe. It is established that playing violent video games ranks almost as high as gang membership as an indicator and predicator of youth violence. Playing violent video games is three times a greater risk factor for aggressive/violent behavior than engaging in substance abuse, being from a broken home, having abusive parents or having a low IQ. (Effects of Violent Video Games on Behavior) As one Amicus Brief pointed out: “A legislature has not been required to cite million-dollar studies or take exhaustive testimony in order to justify requiring parental consent for a minor to play bingo, get married or serve in the military.”
The technology used in these video games is the same as that used by the military, aerospace and medical industries to train soldiers, police officers, doctors, pilots, and astronauts. To say that regular exposure to this type of simulation is not effective in training and motivating individuals to behave in particular ways is to deny reality (or it seems there is a lot of money being wasted on simulators).
3. The well-established “obscenity standard” does not apply to depictions of violence.
This is the argument that has garnered the most attention because it would create, as some experts have stated, a “sea change” in constitutional law. The Supreme Court (Ginsberg 1968 and forward) has held that states have the right to restrict commercial dissemination to minors of erotic materials (pornography). The Ninth Circuit, through their ruling, has declined to extend that exception to violence–particularly the violence in video games because it might, by extension, be applied to violence in films, books, magazines, etc. That question will be decided by the Supreme Court this fall.
Just as there is a state’s right to protect vulnerable children from purchasing Playboy or Penthouse, there should be a right for a state to protect its children from the damaging effects of violence and sexual titillation delivered to our youth through video games. The First Amendment certainly permits this type of modest regulation of the direct sale/rental of pernicious material to a child that does not in any way limit the freedom of an adult nor does it stop a commercial enterprise.
4. The task of protecting children should be left to parents without interference from government.
As outlined in the States’ Amicus Brief: “The California statute constitutionally protects the intrinsic parental right to control the upbringing of children, a well-recognized constitutional objective.” It is interesting to note that it is constitutional to require parental approval for children to play Bingo, participate in internet gambling and other game playing, but the Ninth Circuit deems it unconstitutional to limit children’s access to violent and pornographic images that have multiple layers of damaging effects to children and to society.
Lastly, parents are limited in their ability to screen video games for offensive material. These games are not a movie that a parent can watch, or a book that they can flip through and make a determination of its suitability. Video games are complicated and require high levels of skill and massive amounts of time to reach the different levels where content is revealed. The “just let the parents do their job!” line is hardly applicable here. This is certainly a time where assistance should be rendered to parents through effective labeling and restriction on youth purchases.
“California’s law permissibly seeks to reinforce the authority of parents. Limits on juvenile freedoms find their strongest justification when they simply help parents guide their own children as they see fit.” (States’ Brief)
United Families International notes that the types of ideology displayed by the Ninth Circuit ruling– children possess the ultimate right to make decisions for themselves–is part of a broader international “children’s rights” movement designed to take power from parents and turn it over to the state. United Families will continue to expose the agendas and actions of entities, both national and international, who espouse the “children’s rights” doctrine.
The California statute in question is a common sense law that prevents no adult from buying or renting said games. Even minors are still allowed to play them with adult consent. It is a law that helps to ensure that parents–not video game manufactures and retailers–decide what children will be exposed to.
As California Governor Arnold Schwarzenegger stated regarding the new law, “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies.”
If you live in a state where your Attorney General has already given support to California’s new law, please consider contacting them with a note of “thanks.” UFI will keep you informed as the case continues through the system and we’ll alert you if other Attorney Generals move to support those who would eagerly sell graphic violence to your children.
Go Here to contact Utah’s Attorney General, Mark Shurtleff.