Times were simpler when all we had was Space Race
The Supreme Court handed down another in a long procession of victories for First Amendment advocates today, invalidating a California law that forbade retailers from selling or renting violent video games to minors.
The law also sought to impose a $1,000 fine on violators.
If the majority’s decision boils down to one big take away, it’s this: the government has no business regulating children’s access to violence, whatever the medium. After explicity stating that video games are entitled to First Amendment protections, the ruling nullified a California law which never actually went into effect. It was a fairly narrow decision, speaking specifically to violent content — not obscenity or sexual explicit content, about which the court is typically less unified.
In other words, it’s up to parents, not the state, to choose whether or not their children can play Grand Theft Auto.
While the seven justice majority insisted that children have a Constitutional right to “be spoken to without their parent’s consent,” Justice Clarence Thomas disagreed. Thomas is an Originalist and tends to judge through the prism of what he believes the founding fathers originally intended. In his minority opinion, he embarked on a winding, discursive analysis of the social mores at the time of ratification. He concluded that “the Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors.”
The majority dismissed this argument, saying this view would preclude children from attending political rallies or receiving religious pamphlets.
What’s interesting is how the Court found no issue with violent content specifically. The majority cited the cultural tradition of gruesome children’s literature, such as Grimm Fairy Tales, in making its case. As far as profanity, nudity, and obscenity, Justice Scalia was silent.
One reason? Two years back, Scalia authored another opinion which held that profanity could be kept off the air by the government, expressly to shield children from this sort of language. At that time, the Court upheld a law forbidding the use of any profanity between the hours of 6 a.m. and 10 p.m., the hours when children are reasonably going to be watching T.V.
It’s an odd distinction as it’s unlikely a single instance of profanity is somehow more harmful than hours upon hours of hyper-gory video games. One important difference between the media is that television is undoubtedly more pervasive than video games and broadcast television in particular can be seen without actually purchasing it. Not to mention that television is a constant stream, while a video game title is bought individually. Also, pragmatically, it’s much easier for a child to watch a television show than head out to a video game store and physically purchase or rent a game.
But it helps highlight the subtle distinctions on which these cases turn. The Court often includes language that condemns the content of speech they are protecting. Speech that is “hurtful” or “distasteful” or “offensive” is nonetheless allowed in almost every context, be it on the internet, in movies, or outside a serviceman’s funeral. In general, they err strongly on the side of protecting speech.
Which is why we’ll be keeping a close eye on FCC v. Fox TV and ABC-TV, et al. When the Supreme Court hears that case next term, it will be deciding whether the “current indecency enforcement regime” violates either the First or Fifth Amendment.
Cases like these don’t determine what we can watch or purchase — those freedoms are rarely, if ever abridged. What they do determine is when and who can broadcast or sell content that some people deem questionable.
It sounds like a tiny issue. In reality, the case could change broadcast rules for decades to come.
Related articles
- Text of Supreme Court Decision in Violent Video Games Case (supremecourt.gov)
- Justices Reject Ban on Violent Video Games for Children (nytimes.com)
- Video games given full First Amendment protection (news.cnet.com)
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I’m confused. You said in the beginning of the article that the law prevents the selling of violent video games to minors, then say it’s the parents right to decide. I don’t understand the issue then. Parents still have that right by choosing to buy those games for there kids. So really the law is not any different than movie theaters not allowing minors into rated ‘R’ movies without a parent.
Movie ratings are a code that filmmakers, studios, the MPAA, and distributors choose to follow. As the MPAA says: “Movie ratings provide parents with advance information about the content of films, so they can determine what movies are appropriate for their young children to see…they help protect the freedom of expression of filmmakers and this dynamic American art form.” The ratings are created by an independent board, not a government agency.
The ratings for video games are the same — created by the industry to inform parents and gamers about the content within the game. What the Supreme Court decided was that video games were protected by the 1st Amendment and the law prohibiting sales or rentals of these titles were therefore unconstitutional. Much like a movie theater can refuse to admit a 14 year old to an R-rated movie, a video game seller can likewise refuse to sell a violent game to a teen. What’s unconstitutional was the mandate that they do so under the threat of fiscal punishment.
Hope that helps!