In the War on Violent Video Games, Arnold Has No Clothes



INT. Truck Stop. Night.

YOU are at a table in a dive north of LA. A big guy, well muscled, ready to fight, walks in totally naked.


I need your clothes, your boots,

and your motorcycle.


Start again.


Violence is very bad for children.

Give me your violent video games

or I will take your money.


Which games? Do you mean the

Terminator game for DOS? Or

the NES version? The 'Terminator 2'

arcade game? Or the Game Boy version?

What about the 'Terminator Salvation'

games? 'Robocop v. Terminator'?

Hey, big naked guy, where are you


Our naked man is Arnold Schwarzenegger, Governor of California. His lawyers will be at the U.S. Supreme Court on Tuesday to argue that violent entertainment is very, very bad for children and must be restricted by law.

It may not be Arnold's most convincing performance.

Claude Rains as Captain Renault pocketed his roulette winnings and exclaimed, "I am shocked! SHOCKED to find that gambling is going on here!" He did not, however, run for President of France and then become a media spokesman for the anti-casino cause. Arnold's success at entrancing 12-year-old boys by shooting huge guns has vaulted him to a position of power from which he will blandly urge the Court to create a new exception to the First Amendment: violent entertainment aimed at 12-year-old boys.

Emperor Arnold really isn't wearing any clothes.

In fairness, Schwarzenegger will simply be defending a law passed by the California state legislature. He did sign it, however, and when he did so, he said, "It is very important to protect children." The California law in question targets "violent video games." That category includes any game that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being," if the game "appeals to a deviant or morbid interest of minors[,] . . . [i]s patently offensive to prevailing standards in the community as to what is suitable for minors" and "as a whole," lacks "serious literary, artistic, political, or scientific value for minors." If the game meets that definition, a game vendor can be fined $1,000 for selling it to anyone under 18.

Similar laws in Indiana, Illinois, and Washington have been struck down by federal courts. The courts' reasoning, which is pretty orthodox First Amendment doctrine, is that the statutes target speech on the basis of its content. Because they do so, they must pass "strict scrutiny"--meaning that the state must show that they advance a "compelling interest" of the state, and that there's no "less restrictive means" to advance that interest.

It's a tough standard to meet. The courts have designed it that way over the years because, as they have read the First Amendment, the government needs a very, very good reason before it can ban speech it doesn't like.

There are some exceptions to the "strict scrutiny" rule. Obscenity, fraud and solicitation to crime, child pornography, and "fighting words" are examples. If speech falls into an exception, it can be banned without going through the "strict scrutiny" mill. But the courts have said over the years that these categories arise because they have historically been exceptions, not from a contemporary subjective decision about what kind of speech is really bad.

Every now and then, however, the Court finds a new exception. In the 1982 case of Ferber v. New York, the Supreme Court for the first time formally announced that photos and videos of children engaged in sex acts are such an exception.

Speaking as a true First Amendment hard-liner, I am not bothered that child pornography--meaning actual pictures of children being molested or abused--isn't protected. Real children are harmed to make them.

But First Amendment exceptions are like lollipops--if one kid gets one, all the others want one too. Just last term, the federal government asked the Court for a new exception: videos of humans hurting animals. The Court refused. Now California wants one for "offensively violent, harmful material with no redeeming value for children."

California's proposed exception is not based just on some alleged special harmful quality about video games, but on the idea that government, if it chooses, may limit all offensive violence to "protect minors' physical and psychological welfare, as well as their ethical and moral development." If the Court creates the exception California seeks, another state might make it a crime to sell a Terminator video to minors--or, for that matter, a copy of The Iliad--the most violent book I have ever read.

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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