The U.S. Supreme Court recently heard arguments over whether or not to ban minors from buying or renting violent video games.
According to press reports, the reaction from the justices was mixed, with the reactions not holding to the normal dividing lines between them on most legal questions.
The case relates to a 2005 California law that outlaws selling excessively violent video games to minors. It was signed, as some ironically noted, by a former actor renowned for his violent films, Governor Arnold Schwarzenegger. After being struck down by lower courts the battle over the law has now reached the Supreme Court.
Questions from the bench ranged from why video games should be singled out for special treatment as opposed to violence in comics or rap music, to whether they could even be considered as a form of art, the Wall Street Journal reported Nov. 3.
“We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down,” Chief Justice John Roberts said, according to a Nov. 2 report by the Associated Press.
By contrast, Justice Antonin Scalia said: “I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech.” He then added: “It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.”
According to the Associated Press story, courts in six other states have struck down similar bans.
“Video games, even the violent ones, enable players’ free expression, just like musical instruments enable musicians’ free expression,” wrote Daniel Greenberg, a video game writer and designer in an opinion piece for the Oct. 31 edition of the Washington Post.
“No one in the government is qualified to decide which games don’t enable free speech, even when that speech comes from a 15-year-old,” he argued. He also maintained that California’s authorities had failed to produce hard evidence that video games cause psychological harm to minors.
Following the arguments in court, a contributing editor for PC World, JR Raphael, also condemned the law in an undated article on their website.
Even aside from matters of principle he pointed out practical problems with the legislation. The wording of the bill defines a violent video game as one “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner that’s “patently offensive,” appeals to a person’s “deviant or morbid interests,” and lacks “serious literary, artistic, political, or scientific value.”
“So who’s going to make the call as to which video games are ‘patently offensive’ and which aren’t?” he asked. He quoted a question from Justice Antonin Scalia who asked “What’s a ‘deviant’ violent video game? As opposed to what — a ‘normal’ violent video game?”
Gregory K. Laughlin, law library director at Cumberland School of Law at Samford University, Alabama, argued in favor of the law in an online piece published Nov. 2 on the First Things website.
He admitted that researchers are divided over whether there is a linkage between video games and violent behavior. He also acknowledged that the issue is one of free speech. In the past, however, the Supreme Court has upheld restrictions for minors in the area of free speech, he said.
More than 40 years ago, Laughlin pointed out, the Supreme Court upheld a New York law restricting minors’ access to pornographic magazines. In its decision the court explained that the state was justified in doing this not on the basis of scientific certainty about the harm caused, but because “parents have an interest in the ethical and moral development of their children and have a right to expect help from the state in rearing their children to be ethical and moral adults.”
Laughlin referred to other decisions and concluded by quoting from an opinion dating back more than 60 years, by Justice Robert Jackson, who said: “There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
A similar debate was held earlier this year in Australia, when the federal Attorney-General’s department received submissions on whether a R18+ category for video games should be introduced.
No decision has been announced yet, but in May the government issued a report on the material received from the public and organizations. There were 34 submissions from community, church and industry groups. Of these, 18 supported the introduction of an R18+ classification while 16 opposed its introduction.
The entertainment industry groups are in favor of an adult category, which would enable them to sell games not currently allowed in Australia. In their submissions, they held that there is a lack of conclusive scientific evidence that violent media causes or triggers violent behavior. They also maintained that there is no proof that violence in video games is more damaging than violence in films and other media.
A number of Christian and family groups opposed an adult category of video games. In its submission, the Australian Christian Lobby said that there is already widespread concern in the community over violence in the media.
Maintaining a ban on video games unsuitable for minors is, they said, an approach “grounded in the commonsense and research backed premise that the interactive nature of computer games causes their content to have a greater impact on players than the effects of similarly rated filmic depictions of violent or sexual conduct on viewers of movies.”
The Australian Council on Children and the Media observed that with R18+ materials that are portable, such as DVDs and games, there is a much greater risk that children will not be protected from exposure to them. This is in contrast with cinema films where it is easier to protect children.
Moreover, while some parents might be well informed enough about risks and vigilant about preventing exposure in their own homes, not all are, they said.
The Catholic Church, however, took a different stance on the matter. The submission from the Australian Catholic Bishops’ Conference (ACBC) started by stating that their preferred position is that R18+ material would not be available in Australia.
Given, however, that it already is present despite being illegal, then it would be preferable to introduce an R18+ classification category for these games so that access to such material by minors can be restricted.
The submission made clear that the ACBC did not approve such video games. “In an ideal world, the sort of material that is included in R18+ or higher classification films and computer games would never be seen in a civilized democracy,” the bishops commented.
As it’s not an ideal world, however, we need to work out how best to deal with the situation. Banning is not an option, the ACBC submission argued as much of this material is available either via downloads or copies.
As Justice Jackson observed decades ago, parents have a legitimate interest in the ethical and moral development of their children. A task parents and lawmakers are struggling with in the midst of rapid changes in media technology.
Legionary Father John Flynn writes from Rome. This article originally appeared in Zenit.