really isn't wearing any clothes.
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
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
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
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.