Violent Video Games Come Before the Supreme Court

California wants to ban their sale to minors, but lower courts say that violates the First Amendment

Back in April, the Wire covered the Supreme Court's decision to hear a case involving violent video games. California passed a law banning the sale of such games to minors, but lower federal courts struck it down, ruling that it violated the First Amendment. This Tuesday, the Supreme Court will be holding an oral argument for the case. What are the legal issues at stake, and is there any chance the Supreme Court will reverse the decisions by the lower courts?

• The Question Is Whether Violence Is Like Sex  Sexual content is already subject to similar bans, notes lawyer Adam Cohen at Time--the courts treat it "as a kind of speech that does not get full First Amendment protection," and supporters of the law want them to do the same with violence. "But the courts have so far rightly refused to do this. Indecency law, after all," he writes, "has become a mess of late." He, like many opponents of the law, thinks voluntary ratings would be better, though he says, reviewing what occurs in many of these games, that "it is not hard to see why California decided to pass the law it did."

• Should Be Up to Parents  Video game designer and anti-censorship professional advocate Daniel Greenberg writes in The Washington Post that, "as a game developer, [he is] disheartened and a little perplexed to see [his] art and passion lumped in with cigarettes and booze." He does see video games as a form of expression and art, a "dialogue between a player and a game" which can also become a dialogue between players. Some games, he notes, have tackled issues of morality by providing consequences for violent actions. "The people allowed to limit a minor's free speech rights are his parents or guardians," he contends, not the government. "Video games, even the violent ones, enable players' free expression, just like musical instruments."

• Why the 'Leave It to Parents' Argument Rings Hollow  "Critics ...  point out that many game consoles include parental controls that could be used to block violent games," observes a Washington Post editorial. "This also is an important tool, but few would argue that laws against selling alcohol to minors would be unnecessary if every household had a liquor cabinet with a lock." The writers don't think the California law is "perfect," but argue "the justices should give states the flexibility to enact restrictions on video game sales to minors, even if the California law proves unacceptable."

• Why the Court May Actually Reverse Previous Decisions  Lyle Denniston provides the indispensable SCOTUSblog coverage of the case's legal complications. One of the interesting observations: the state has been arguing that, in the matter of whether violent videos actually harm children, the state doesn't actually need to prove a direct link but merely a correlation: the games industry has already "concede[d] that some violent content should not be accessible to minors, because it has a rating system supposedly to insulate them from it." Here's Denniston's opinion on how this could play out:

The Court may already have signaled that it does see a problem with violent video games and their potential impact on children, simply by taking on the California appeal when there was no split in the lower courts on the issue.  If that perception exists and if it represents a majority view, the argument between the two sides over whether the scientific data now available proves the point (or does not prove it at all) may have little effect.  The Justices may be prepared to move on to the harder question of what to do about it. ... On the other hand, the Court has demonstrated that it finds virtue in caution when confronting the social effects of new media.  Perhaps there is a member of the Court who actually plays a video game (or knows well someone who does), but the chances are that the Justices are not closely familiar with what is available now in the universe of such games.

• The Issue Is 'Compelling Interest'  In limiting speech, the state needs to show that it has such an interest "and has used the least restrictive means to achieve it," explains Slate's Emily Bazelon, a fellow at Yale Law School. Though she herself is "not a First Amendment absolutist" and also thinks "the law gets it backward" (she'd "pick shielding [her] kids from violent content over sexual content any day of the week") she nevertheless argues that the state might have a hard time proving that the law is sufficiently narrow in its scope, with compelling interest behind it:
  

Let's stipulate for a second that the research on the link between playing games and acting more aggressive is good enough, despite the reasons for skepticism. What about the least restrictive means part? Does it really make sense to bar older teenagers from buying violent games? By 15 or 16, do they really need the state acting as their protector?

In this context, the answer is probably no. The idea that a 17-year-old can go to an R-rated movie alone and then be turned away at the video store seems kind of silly. Which means California's ban is broader than it should be. And if the state lowered the age, say to 14, how many kids would it really affect?