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June 12, 2011

Might concerns about porn prosecutions and gun rights be impacting SCOTUS decision-making int he violent video game case?

As many SCOTUS watchers know, the Supreme Court has been taking a long time to hand down its ruling in Brown v. Entertainment Merchants Association, the California case concerning whether restrictions on the sale of violent video games to minors violates the First Amendment (the SCOTUSblog case page here provides lots of legal background).  Because I am not a free speech maven, I have not been focused too much on the case.  But, excerpts from this new effective UPI piece on EMA prompted for me the question in the title of this post:

California should find out any day now whether its law forbidding the sale of sometimes grotesquely violent video games to minors has survived a constitutional challenge in the U.S. Supreme Court. The central issues in the case, even on the surface, are pretty meaty.

  • Whether the First Amendment allows restrictions on "offensive" content in violent video games sold to minors, and
  • Whether the state law banning the sale of games with offensive images to children falls if it fails to pass "strict scrutiny," the toughest standard of review by the courts.

Beyond those core questions, however, the case raises issues about the type of society we are building.  There would be no question about the constitutionality of the law if it restricted the sale of sexual images to minors, as opposed to violent ones.  California asks, why the difference?

Do violent, sometimes outlandishly violent games viewed by children contribute to the growing coarseness and danger in American society?  Some medical specialists believe that it does.  But when government imposes censorship, no matter how valid the reasons, does it clamp a "chill" on types of expression far beyond the targeted speech?   Media groups supporting the challenge say that it does....

California told the Supreme Court in a brief that in enacting the law the "Legislature sought to reinforce the right of parents to restrict children's ability to purchase offensively violent video games.  In doing so, the Legislature considered numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between playing violent video games and an increase in aggressive thoughts and behavior, anti-social behavior and desensitization to violence in both minors and adults."...

A federal judge, citing the First Amendment and using "strict scrutiny," declared the state law unconstitutional and issued a permanent injunction barring its implementation.  Violence cannot be considered unprotected speech under the First Amendment without the element of sex, the judge said, even when the restriction is applied to minors....

Rather than strict scrutiny, California wants the Supreme Court to review the law under the standard set by 1968's Ginsberg vs. New York: "Under the Ginsberg standard, the act must be upheld so long as it was not irrational for the California Legislature to determine that exposure to the material regulated by the statute is harmful to minors."  In addition, "The First Amendment does not require states to demonstrate proof of a direct causal link between violent video game play and harm to minors," California said in its brief.  Instead, even under strict scrutiny, "a proper application of this level of review requires that the state Legislature draw reasonable inferences based on substantial evidence."

The linkages (and/or jurisprudential lines of demarcation) within the First Amendment regarding violence and sexuality are clearly raised by this case:  what SCOTUS says about the regulation of minors and images of violence surely could impact regulations concerning minors and images of sexuality.  Throw in the impact of modern technology and new forms of communication (e.g., sexting involving minors and/or Weiners), and it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact porn regulations and prosecutions.

The issue of gun rights and nascent Second Amendment jurisprudence may not seem directly in play in  Brown v. EMA, but the arguments being made by California to support regulations on violent video games appear quite parallel to arguments often made to justify gun restrictions of all sorts.  Supporters of gun control often point to "numerous studies, peer-reviewed articles and reports from social scientists and medical associations that establish a correlation between [access to firearms] and an increase in aggressive thoughts and behavior [and violent and] anti-social behavior."  If this kind of "substanital evidence" of potential harms to kids enables a speech regulation to survive strict scrutiny under the First Amendment in EMA, advocates of gun control will surely be quick cite similar "substantial evidence" in support gun myriad regulations despite Second Amendment limits.  In the wake of Heller and McDonald, it seems likely that some Justices may be thinking about how the Court's ruling and dicta in EMA could impact gun rights and regulations.

June 12, 2011 at 06:18 PM | Permalink

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Comments

We live in a weird world. Make a video simulating a child being hacked to death with a machete, and you're fine. But if the simulation is of a naked child being hacked to death . . . you can go to prison for decades.

Posted by: anybody | Jun 13, 2011 10:33:27 AM

That's actually not true, anybody. Creating a video simulation of a naked child is protected by the First Amendment. See Free Speech Coalition. Virtual child pornography is protected.

Posted by: anon | Jun 13, 2011 12:20:30 PM

Yes, anon, as long as we're splitting hairs, I should have said: But if the simulation is of a child being hacked to death, and the genitals of the child are lasciviously exhibited, . . . you can go to prison for decades. See 18 U.S.C. 2256(2)(A)(v).

Posted by: anybody | Jun 13, 2011 1:58:26 PM

The edit to your comment, anybody, demonstrates that we are not splitting hairs. Adding the adverb "lasciviously" shows the conduct truly being punished. Far from hair splitting, the conduct of "mak[ing] a video simulating a child being hacked to death" is significantly different from making a video that lasciviously exhibits (i.e. satisfies the definition of obscene) a child's genitals.

Posted by: anon | Jun 13, 2011 4:35:36 PM

@anon: Of course it's significantly different; that's my whole point. Under the law, it is much worse to make a video simulating the lascivious exhibition of a child's genitals than it is to make a video simulating a child being hacked to death. The former is punishable by decades in prison. The latter is perfectly legal.

Like I said, we live in a weird world.

Posted by: anybody | Jun 14, 2011 1:27:11 PM

I'm sorry, but the fundamental problem is that Ginsberg is irrational -- there's almost NO psychological proof that sexual speech harms children. So if we use the Ginsberg precedent of restricting speech with no provable harm, then of course we should be able to ban ANY speech for children -- the bar is non-existent.

So which wins? The low bar set by the Ginsberg precedent or Strict Scrutiny?

Posted by: DoomGoober | Jun 17, 2011 2:56:39 PM

I beleive that the more violence that childen see equals the more violent that they will be when they grow up. Violent games should not be available to children. We need to protect the next generation,after all,they will be our leaders when we get old.

Posted by: Randy | Dec 27, 2011 10:54:09 PM

Great job on the article. However violent the video game may be, the human thought, either young or old, can analyze what is real or not. Politics against Videogames is a stupid anyway.

Posted by: Homebrewer | Feb 7, 2012 10:47:27 AM

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