Violent Video Games in the Supreme Court

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.


10 Responses to Violent Video Games in the Supreme Court

  1. Snoring Dog Studio says:

    Kendrick, I think you are just all over the place here. And so, my comment will be, as well.

    But why shouldn’t we protect our children from violence? And who is the “we” here? Government? Parents?

    We don’t protect our children from overt violence? Really?

    Frankly, though I’m not a parent, I’d wager that most responsible parents don’t take their toddlers to boxing matches or let them watch X-rated movies like Pulp Fiction. The film industry’s rating system wouldn’t even let them in.

    Are we really shielding our children from overt sex? If “we” is the government, it’s not doing a great job. The Internet is wide open for viewing scenes and images of overt sex.

    Your qualification about sports, evening news, etc., doesn’t hold up. If sports and the evening news can be considered exposing children to overt violence, then people smooching in public, fondling each other on TV certainly could be considered allowing children to experience overt sex. Now we don’t know what the word “overt” means. Darn.

    Violence in our culture is a no less ambiguous staple of our culture than is sex. It ranges from cartoon characters smacking other cartoon characters to the actual video images of people killing others. Pose a series of violent scenarios to groups of people and I guarantee you’ll get ambiguity and ambivalence.

    And your distinction about the need to educate children in the necessity of violence rather than of sex, because sexual knowledge will come out of experiencing natural urges that take care of themselves, is leaning toward hazardous neglect. Granted, explanations about violence are warranted, given that its multiple expressions fall on a very wide continuum of behaviors. But there are multiple expressions of what is considered sex as well and to a child could be awfully confusing.

    That the judges couldn’t imagine the existence of “obscene” violence is their shortcoming and shortsightedness. They couldn’t observe obscene depictions of violence and offer the same First Amendment exclusion?

    • Perhaps part of the reason I seemed all over the place is because I likely failed to make clear that I am talking only about First Amendment limitations on government regulation. I am not talking about what parents should or shouldn’t do regarding either sex or violence. And indeed, there is already a robust private partnership between parents and the entertainment industry in the form of the various voluntary ratings systems. The movie industry and gaming industry both take enforcement of their rating systems very seriously, and their records, as monitored periodically by the Federal Trade Commission, are quite good. And every time the FTC has issued one of its reports assessing the entertainment industry’s performance in ratings enforcement, it has stated a strong belief that the First Amendment prohibits direct government regulation of entertainment content. In sum, there is already a private consensus that some entertainment content may not be appropriate for children. The question is whether government has any business making that consensus a dictate of regulatory or criminal law. The literal words of the First Amendment say no,

      So the question becomes, is violent content sufficiently like any of the very carefully and narrowly drawn exceptions to First Amendment protection — such as obscenity, libel, etc. — to warrant permitting government to regulate in this realm? And the only real candidate for comparison is obscenity.

      So then the question becomes, as I framed it somewhat simplistically, are sex and violence comparable in our culture?

      I still suggest the answer is no — though you raise persuasive points to the contrary. And I still suggest that violence is most certainly a more ambiguous cultural phenomenon than sex. Consider only this (in my opinion) dispositive example: the social science on the effect of violent video games on children is sophisticated and very well developed. Yes, its conclusions point in opposite directions, but at least the science is there. The science on the effect of pornography (much less obscenity) is sketchy and inferential by comparison. Why? Because universities won’t allow researchers to expose children to pornography (much less obscenity) in studies. Violence is okay — but not sexual content. Where does that come from? It comes from a deeply-imbedded cultural distinction between sex and violence — and a more absolutist take on the former.

      Yes, of course there are gradations of both sexual and violent content, both yielding unseemly extremes. But the legal question is whether parents can get dictated “help” from the government in the teeth of the First Amendment. As to extreme sexual content, our culture dictates a First Amendment exception. Yes, government can “help” parents regarding obscenity. As to extreme violent content, our culture says no, the government cannot “help” with its own arbitrary mandate. Private parenting, and voluntary partnerships like the entertainment rating systems, will take care of that quite well enough.

      • Snoring Dog Studio says:

        I may be dense – I’ll be the first to admit it, the rest of you can follow along and nod your heads in agreement… but, I see no consistency in the decision by the judges. And that’s what bothers me. If it’s merely a matter of there being private institutions and organizations to assist in developing the rules, along with private parenting, then obscene sexual content shouldn’t have had an exclusion from the First Amendment. The film industry and good parenting could handle that part of culture as well. Other organizations could have stepped in, too.

        Extreme, obscene examples of sex and violence are comparable in our culture – comparable to the extent that children shouldn’t be witness to them, no matter the existence or lack of scientific proof as to their effects. In both cases, the government should step out of the way and allow institutions, organizations and parents to provide structure and guidance.

        Odd,huh? Even I don’t think the government and the judicial system has a role in every aspect of culture and the expression of it.

  2. Jeff Veazey says:

    I think there is absolutely no doubt, based on my numerous experiences with both gamers and none gamers, that violent video games can be anti-social and desensitizing, foment belligerent responses and encourage age-inappropriate communication, while dull the intellect and wasting time that otherwise could be used doing community service and detering positive activities like reading books, learning a new skill, and exercising or breathing fresh air. My kids have never owed a video game nor have they ever been in any kind of trouble They are well-adjusted, happy, vibrant human beings, who can carry on lively discussions with people of all ages and cultures and excell academically and athletically. However, I am sure the Supreme Court got this decision right. We all engage in some dumb activities which bring us enjoyment. There is no law, nor should there be, preventing the most mindless of dumb activities. I gotta go, re-runs of Seinfeld are on and I’ve only seen this episode 17 times.

  3. lbwoodgate says:

    This one of those times when you have to decide that being anti-government on everything may not pan out in such cases. Just a thought.

  4. I say throw it all out there, and let the public decide. Parents can decide what their kids play and watch.

    • Snoring Dog Studio says:

      Sadly, a great deal of parents are poorly equipped to make those decisions.

  5. rautakyy says:

    I think obcenity of violence and sexuality are set aside as different, because human beings are equipped to engage in violence far more younger than sexuality. However, the culture defines what is obcene. For example the movie 300 (which we discussed under a nother topic) has been ridiculed by many of us finns, simply because it is representative of what is different in the American culture to ours in this particular issue. We finns grow up seeing naked people, since almost every finnish family goes weekly to sauna together, where we can see what all of our family members look like naked. As a result, to us, nakednes is not automatically connected to sexuality. So, when the movie 300 is trying to depict a nother culture to which nakedness was natural as it was to the ancient Greeks, it is “obcene” that the men are wearing these funny little leather codpieces, rather than go naked as they historically did. What makes it obcene is that this is a movie, where one can see men being split from neck to croch by a sword, while blood is spraying all over (as it would). Most finns I know, would find that more obcene, than that the spartan warriors would run around naked on screen. Do you in the US really think it is more hamfull to a person to see a grown man naked, than to see that same man kill a nother man very violently just as long both of them have their clothes on?

    On the other hand in Afghanishtan it is seen obcene if a woman shows her knees, while nobody seems to be bothered by little boys carrying their wooden toy assault rifles.

    • Snoring Dog Studio says:

      The “We” in the U.S. are not the same as the “We” in the SCOTUS. Although, unfortunately, you might think we’re all enamored of violence when you watch American TV.

      • Sedate Me says:

        Take out the idiotic Reality TV bullshit and American TV is little more than a parade of bodies, filleted for our viewing pleasure. The dominant narrative of American TV is that of murder. What’s most disheartening is that the corpse fetishism has become more prevalent, considerably more graphic and is presented in a more detached way over the last 20 years. One could (accurately) say this implies America has become more tolerant of violence, not less.

        It almost makes me wish Touched By An Angel (no, not the porn version) was still on the air.

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