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

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terminatorEDIt.jpg

FADE IN

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.

BIG GUY

I need your clothes, your boots,

and your motorcycle.



CUT!

Start again.

BIG GUY

Violence is very bad for children.

Give me your violent video games

or I will take your money.



YOU

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

going?




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.

Moral crusaders have tried for years to frame violent media through the lens of obscenity. In 2002, a Louisiana convenience store clerk sued the makers of Natural Born Killers after she was disabled by two teenagers on a copycat crime spree. That case proposed a wholesale exception from the First Amendment for depictions of violence if they are as "patently offensive" as obscene sexual material. The Louisiana court refused.

California's position is based on a 1968 case, Ginsberg v. New York, which upheld a state law banning the sale of "girlie" magazines to those under 17. The magazines weren't legally obscene. Adults had a right to buy them. But the Court said that the state could ban sale to minors.

Why wouldn't this approach work with violence? Consider that sexual material can be banned even for adults if it is "hard core" enough; the First Amendment allows slightly more sexual material to be banned for minors. But violent material--books, films, video games--can't be banned for adults at all. Violence is an integral part of most artistic expression.

Some social-science research purports to show ill effects of playing violent video games. But without doubting the findings, I haven't seen anything that shows that video games warp kids' minds in ways that reading The Iliad doesn't. All expressive material changes the way we think, feel, and see the world. If it doesn't, we wouldn't find it interesting.

California's rule would allow censoring not just video games but films and even books aimed at young people. It's a venerable impulse: since the time of Plato's Republic, human beings have imagined that if we could just stop our kids from seeing or reading anything bad, they would grow up to be perfect.

But it doesn't work that way. Expressive material doesn't change us by putting darkness into our bright innocent souls; it changes us because we are born with darkness already inside. Encountering that shared darkness in art is part of learning to be human.

In 2001, a Seventh Circuit panel struck down a law regulating violent arcade games. "To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming," Judge Richard Posner wrote. "It would leave them unequipped to cope with the world as we know it."

Suppression has another cost, one that is hard to assess in advance. In the growth of video games, we are witnessing the birth of a new art form. First Amendment history teaches us to be humble about the perennial human impulse to greet any novelty--printing, broadcasting, motion pictures, television, rock'n'roll--with suppression.

More than two dozen entertainment and media companies, moral-reform groups, and civil liberties organizations have filed amicus briefs in this case. By far the coolest is from the Comic Book Legal Defense Fund. That brief reminds the Court of an episode I am just old enough to remember--the systematic government destruction of the vibrant postwar comic-book industry.

A flamboyant psychiatrist named Frederic Wertham wrote a book, The Seduction of the Innocent, that blamed America's "juvenile delinquency" problem on comic books like EC's Weird Science, Crime SuspenStories, and The Vault of Horror. The resulting legal backlash wreaked havoc in the industry; it took until the 1980s for the comics world to recover. These days, graphic novels like Art Spiegelman's Maus, or Watchmen by Alan Moore, Dave Higgins, and John Gibbons, are justly considered major narrative works of the twentieth century. And comic book historians utter the names Weird Science and Vault of Horror with reverence and sorrow.

The Terminator franchise has inspired dozens of comics and graphic novels, in fact. Which brings us back to Arnold, and the irony that makes him--a figure who owes his present eminence to his performance as a naked murderous robot--the new symbol of censorship.

It would be worrisome if the Court were to give him his way in the video game context. Because, if indulged, the Censor is very much like the Terminator:

He'll be back.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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