by Barbara Jones on July 12, 2011
On the Freedom to Sell Children Games of Dismemberment, Decapitation and Other Blood Gushing Fun!
A few months ago celebrated civil rights attorney and U.C. Berkeley professor William Bennett Turner published Figures of Speech: First Amendment Heroes and Villains, the kind of swift, smart introduction to the First Amendment we wish we’d had in school. As Anthony Lewis points out in his foreword to Figures of Speech, the book not only clarifies need-to-know law but grabs and holds a reader’s attention:
“It does not have the smell of the lamp, of theorizing at a distance. It is a report from the front lines.
“Here are men and women whose often eccentric lives led to great courtroom tests of freedom: Yetta Stromberg, who had a red flag when she was a counselor at a summer camp for young communists in 1929 and was sentenced to prison for displaying that symbol of radicalism. And Dannie Martin a longtime criminal who wrote articles for the San Francisco Chronicle about the federal prison he was in until the authorities stopped him.”
So, for clarity on the June 27th Supreme Court 7-2 decision upholding businesses’ First Amendment rights to go ahead and sell extremely violent video games to young children, we turned to William Turner for guidance:
The Progressive Reader: Two weeks ago, in Brown v. Entertainment Merchants Association, the Supreme Court handed down a First Amendment decision on violent video game sales to children under 18. Can you recap that for us?
William Bennett Turner: The Court decided that a California law that made it illegal to sell or rent violent video games to minors violated the First Amendment.
The California law covered games in which the player can kill, maim, dismember or sexually assault the image of a human being including if the game appeals to a “deviant or morbid interest of minors,” is “patently offensive” to community standards for what is suitable for minors, and the game lacks serious literary, artistic or other societal value “for minors.”
California had not denied that video games qualify for First Amendment protection. The state had contended that extremely violent games were a category of speech that had so little societal value they could be treated like obscenity. The Court declined, however, to create any such new, nontraditional category of unprotected speech.
The Court then simply applied standard First Amendment analysis. Since the California law regulated speech because of its content, the state had to demonstrate that the law served a “compelling” state interest and was “narrowly tailored” to serve that interest. California claimed that playing violent video games made kids more likely to behave aggressively. But the Court found that there was no causal connection between playing the games and actual aggression, and no other demonstrated harmful effect on children. The Court also said the law was “underinclusive,” because it left violent Saturday morning cartoons, movies, television, books and even fairy tales (noting that Grimm is sometimes “grim”) untouched, and “overinclusive” because it prohibited sales to kids whose parents didn’t care or didn’t disapprove.
Reader: I’m the parent of a game-obsessed 12-year-old boy who happens to have done his recent science fair project on raised blood pressure levels in 12-year-old males playing violent games. (Guess what? The boys’ blood pressure levels go way up.) I have to admit it’d make my life easier if I could say to my son that it’s against the law for him to see and play some of the latest cool video games—let the Constitution do some of my parenting work for me! But these are just the feelings of a worn-out parent of three, not conclusions based on legal reasoning. Can you share your theory about which kind of person is a hero and which a villain in a First Amendment case?
Turner: Geez, make it the “law” of the house, rather than depending on government to supplant parental responsibility. (This sounds a little like “Dear Abby.”)
Reader: I was joking. But thank you, Abby. I do think some parents may be shocked by this recent Court decision. Can you enlighten them?
Turner: Relying on government is not heroic. And regarding heroes versus villains, in my view First Amendment heroes are people who say what they believe, have the courage to face the consequences, and are willing to tolerate the really offensive speech of those with whom they disagree. Villains are those who want to suppress speech they disagree with or are fearful of, or who give in too easily to competing values and acquiescence in the idea that people shouldn’t have to hear certain unsettling speech.
Reader: Do you see any heroes or villains in this particular case?
Turner: Only the Justices. The views of some of the Justices smashed their usual ideological stereotypes.
The majority opinion was written by the very conservative Justice Antonin Scalia, who was a hero this time out. Maybe one could say his was merely a pro-business decision dressed up in First Amendment clothes, like Scalia’s concurring opinion in the infamous Citizens United case last year. In Citizens United, Scalia reasoned that corporations using their funds to buy political ads was valuable political “speech” beyond the control of campaign finance laws, and that was what the Framers would have intended. Giving powerful corporations the same kind of free speech rights as dissidents who need the First Amendment to get their voices heard is not heroism. But Scalia’s video games opinion reveals his maverick streak (a sign of First Amendment heroism) and seems genuinely to reflect doubt that government had any legitimate business trying to police popular entertainment. He said “it is difficult to distinguish entertainment from politics, and dangerous to try.” And he parted company with his “originalist” colleague Clarence Thomas, who wrote a long historical dissent in which he concluded that the Framers would have rejected the notion that children have any constitutional right to speak or be spoken to without their parents’ consent. This was consistent with Thomas’s views in previous cases that even high school students don’t have any right to engage in political speech. Endorsing the suppression of the speech of millions of young Americans qualifies Thomas as a First Amendment villain.
Scalia’s usual conservative ally Joseph Alito, neither a hero nor a villain in this decision, strongly disagreed with the idea that playing violent video games doesn’t corrupt young gamers. He did his own research and found the violence in some games “astounding: Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces . . .. Blood gushes, splatters, and pools.” Alito revealed his personal revulsion at the immorality he thought the games taught, saying “there is no antisocial theme too base for some in the video game industry to exploit.” He pointed to games allowing the player to reenact the murders at Columbine and Virginia Tech, the assassination of President Kennedy and engage in ethnic cleansing by choosing “to gun down African-Americans, Latinos, or Jews.”
Justice Scalia acknowledged, “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.” But he said these differences are not constitutional ones: “Justice Alito recounts all these disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression.” Neither is the fact that some of the games allow players to have “fun” killing innocent people or those unlike you — prohibiting speech because it offends your personal morality definitely does not make a judge or a legislator a First Amendment hero.
Justice Stephen Breyer, who ordinarily passes for a “liberal” on the Court, dissented. He was troubled by studies that indicated that playing the games seemed to have some effect on kids’ feelings of aggression. He was reluctant to say that the California legislature couldn’t rely on them, even though there were contrary studies and no one has shown any causal effect between playing the games and actual aggression. As usual (in my view Breyer is the weakest member of the current Court on First Amendment issues), Breyer was too willing to give government the benefit of the doubt, and that’s always dangerous in a First Amendment case. Faith in government’s ability to sort out worthy from unworthy speech is not a characteristic of a First Amendment hero.