Violent Video Games in the Supreme Court
June 29, 2011 10 Comments
The Supreme Court correctly held, 7-2, that California’s law restricting minor’s access to “violent” video games violated the First Amendment. Last year, the California law prompted me to say, “Governor Schwarzenegger, Leave Those Kids Alone,” and to predict the Supreme Court would do what it has now done.
The First Amendment is fascinating in so many ways, not least the unusual bedfellows it creates. The irascible conservative Scalia authored the majority opinion. All of the liberal justices joined his opinion. The other irascible conservative, Thomas, dissented, and was joined by the moderate Breyer. Conservative Justices Alito and Roberts submitted an opinion concurring in the result, but holding out the possibility that legislatures could do this kind of regulation, if they just got it right.
That’s effectively a 5-4 vote on whether legislatures can restrict access to “violent” video games. That’s close. This debate will rage on.
Are sex and violence equivalent from a First Amendment perspective? That’s the essential issue.
Obscenity — beyond-the-pale graphic sexuality — doesn’t get First Amendment protection. And so promoters of the California law sought to equate violence and obscenity. And that’s an interesting discussion. Justice Scalia wrote, in somewhat conclusory fashion, “the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.'”
That is strictly true, as a matter of legal precedent, but doesn’t answer the question whether violence should be treated like obscenity, or whether there are degrees of graphic violence, like degrees of graphic sexuality, that government may more easily regulate. Can there be obscene violence?
Most of us would admit to using the phrase “obscene violence.” But we weren’t talking about the First Amendment at the time. And this is crucial. True “obscenity,” the sexual expression that doesn’t get First Amendment protection, must be truly egregious. Soft pornography, for example, is not obscenity.
Sex and violence are different. Let us count the most obvious ways first. We protect our children from overt sexuality through their growing-up years. We do not protect our children from overt violence through their growing-up years (unless we shield them from most sports, all hunting, the evening news, most religious texts, or any advice on how to deal with the schoolyard bully). Violence is a popular staple of mainstream culture, including pop culture to which 5-year-olds have easy access. Sex is a vastly ambiguous, frequently apologetic, staple of mainstream culture. Both sex and violence can yield good things — but we’re much more comfortable discussing the do’s and don’ts of violence with our ten-year-old than the do’s and don’ts of sex with our ten-year-old.
In fact, we need to educate our children in the actual necessity of violence, at times. Self-defense is the best example. There are others. Violence permeates our pop culture because there is so much fair violence and so much unfair violence in real life.
We do not need to educate our children in the actual necessity of sex. That takes care of itself.
We understand the impulse of sex. We simply do not wish to encourage our children to do it. We understand the impulse of violence and we wish the greatest education about it. We want our children to understand that sometimes violence is fair and sometimes violence is unfair. We wish most profoundly that our children understand this distinction.
Violent video games are an education in violence, and what is fair and unfair. Obscenely sexual videos do not educate. At all.
Sex and violence are different. The Supreme Court got it. Sort of.