US Supreme Court rules on violent video games

[BobG]

The US Supreme Court ruled that http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

A few things were notable about this decision. For one thing, Scalia and Thomas were on opposite sides of the issue (they almost never disagree on decisions). Secondly, Alito should be commended on his thorough research on violent video games and his report to the court of his experiences:

In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.

It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.

The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in“ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews. In still another game,players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.

And yet, Alito concurred in the majority opinion that there was a First Amendment right to sell video games to minors.

Thomas's dissent was equally thorough (and tedious) in documenting the long history of denying rights to children, because they were minors and essentially belonged to their parents until they were adults.

I have to agree with his conclusion:

Even assuming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent videogame to a minor by someone other than the minor’s parent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typical case, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally understood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.

“The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.

And, given that the state can prohibit the sale of sexually explicit material to minors, the Supreme Court's ruling on selling violent video games to minors is a major conflict in SCOTUS decisions on the First Amendment.

Thanks to the SCOTUS ruling, a 13-year-old can "actively, but virtually, bind and gag a woman, torture her, and then kill her provided she's fully clothed while he does it. Unfortunately for him, he can't buy a video game where he binds and gags, tortures, and kills a woman with exposed breasts.

(Not having first hand experience, I just have to assume that the video game Alito researched involved raping fully clothed Native American women, since that game was apparently seen as protected by First Amendment rights.)

 

[Proton Soup]

not surprising. it's a national security issue. we need to have kids entering the military workforce that are numb to the effects of violence committed in such virtual manners. then the president can actually make arguments that we are not engaged in hostilities with an enemy if we are engaging remotely and they can't hit us back.

actually, I'm pro-free speech enough to be OK with this decision, even though it might be affecting us.

 

[talk2glenn]

What about Thomas' opinion do you find agreeable?

Even assuming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent videogame to a minor...

This sentence is fundamentally contradictory. Assuming video games are speech, as Thomas proposes, it is precisely the case that a law "prohibiting" (again in Thomas' own words) their distribution is an unreasonable restriction of the First Amendment. Truth by definition.

And, given that the state can prohibit the sale of sexually explicit material to minors, the Supreme Court's ruling on selling violent video games to minors is a major conflict in SCOTUS decisions on the First Amendment.

Their is substantial legal precedent supporting restrictions on the sale of indecent material to minors. As Alito explains, it has never been the case that violent and/or offensive speech has risen to the level of indecency. If it were, it would give the state unreasonable leeway in defining decency, to the detriment of First Amendment intent.

The Court rightly rebuked California here. Allowing this legislation to stand would have almost certainly opened the door to increasingly onerous restrictions on broad categories of traditionally protected material; the video game sale bill may appear limited, but it was constructed this way deliberately to test Judicial will ("I dare you to strike this carefully worded, limited, and for the children law"). This has always been the case; the slippery slope fallacy seems not to apply when the subject is government. Give an inch, and the bureaucrats will take a mile. Observe the trend re the Commerce clause post-NIRA for that. A hard line needs to be drawn between the regulators and speech, even or especially when the restriction is popular.

 

[Ryumast3r]

If you banned violent video game sales of this type, then you would have to ban Bugs Bunny cartoons (and many other kids' shows and cartoons for that matter), because the increase in violence seen after watching/playing these games/cartoons (which is debatable at best, research goes both ways) is the same in both cases.

You'd also have to ban movie sales to kids if the movie is rated R for violence. Currently, it is up to companies, corporations, and the parents to regulate the selling of such material. The legal precedence has been set, in terms of violence, and it would probably require totally conclusive evidence that it is pretty harmful before these cases could be overturned.

 

[Char. Limit]

Just wanted to pop in and say that I agree with the majority opinion of the court.

IMO.

 

[mege]

not surprising. it's a national security issue. we need to have kids entering the military workforce that are numb to the effects of violence committed in such virtual manners. then the president can actually make arguments that we are not engaged in hostilities with an enemy if we are engaging remotely and they can't hit us back.

National security issue? What?

actually, I'm pro-free speech enough to be OK with this decision, even though it might be affecting us.

Even if you don't clarify your first statement, I'm curious as to how you think this decision will affect us? The law didn't was deemed unconstitutional, so it's status quo as far as video game sales are concerned.


I am very glad that this law got shot down by the SCOTUS. There is already enough self-regulation in the industry that there is hardly an issue that needs to be addressed legally (IMO). 'Protecting' minors is admirable (protecting from what though in this case?), but it should be the parent's responsibility, not Uncle Sam's.

 

[Proton Soup]

National security issue? What?

ah, I'm having a bit of levity with the current Libya situation. (see local thread)

Even if you don't clarify your first statement, I'm curious as to how you think this decision will affect us? The law didn't was deemed unconstitutional, so it's status quo as far as video game sales are concerned.

i mean I'm taking seriously the idea that video games really do desensitize us to violence. tho, maybe not the traditionally-pushed idea of personal, one-on-one street violence. rather, the depersonalized violence of things like remotely-fired drone missiles.

i think the decision is fine. the way to deal with these things is awareness and education.

 

[drankin]

IMO, there is no substitution, games or otherwise, that can cause one to desensitize actual violence. There is a big difference between pushing a button in your living room and pulling the trigger in a combat theatre or simply fist fighting on the street. Of course, if we're are talking drone attacks, that would simply be a combat advantage. We don't want soldiers having a sensitivity moment when they need to be completing a mission objective.

The courts have recognized a parents obligation to determine what their children digest for entertainment. It's a great line for the courts to draw between parenting and government.

 

[BobG]

The courts have recognized a parents obligation to determine what their children digest for entertainment. It's a great line for the courts to draw between parenting and government.

How so? The ruling means kids can take their money, buy their game, and the parent never knows as long as the kids don't play it in front of their parents. A ruling upholding the ban of sale to minors would have recognized the parents' right to determine what their children digest for entertainment - the only way the kids could get the game is if an adult bought it for them.

This is a ruling protecting video game manufacturers' First Amendment rights to sell things to your kids regardless of how you feel about it.

 

[BobG]

If you banned violent video game sales of this type, then you would have to ban Bugs Bunny cartoons (and many other kids' shows and cartoons for that matter), because the increase in violence seen after watching/playing these games/cartoons (which is debatable at best, research goes both ways) is the same in both cases.

Scalia and the majority seem to share this opinion:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jeal-ousy.” ... Cinderella’s evil stepsisters have their eyes pecked out by doves. ... And Hansel and Gretel (children!) kill their captor by baking her in an oven...

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. ... (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. ... And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island...

However, I think there's a big difference between Scalia's example and a movie depicting the searing and blistering flesh of the wicked queen's feet and showing the viewer exactly how the burned flesh tears away when the shoes are removed.

The artists russ_waters ridicules in his "It's finally happened" thread would surely agree that the personal image the viewer creates in his mind is the equivalent of graphic depictions of an act or an object, and they are certainly willing to charge an equivalent price (https://www.physicsforums.com/showpost.php?p=3378387&postcount=14).

I wouldn't buy those artists' artwork and I don't buy the idea that imagining gruesome scenes is the same as experiencing those gruesome scenes in graphic video games.

 

[Ryumast3r]

IMO, there is no substitution, games or otherwise, that can cause one to desensitize actual violence. There is a big difference between pushing a button in your living room and pulling the trigger in a combat theatre or simply fist fighting on the street. Of course, if we're are talking drone attacks, that would simply be a combat advantage. We don't want soldiers having a sensitivity moment when they need to be completing a mission objective.

Actually, there have been studies that show that video games (and books/shows/movies for that matter) are registered in a different way by the brain than real violent acts.

The way that video games register is in much the same way as two brothers wrestling does, as just what it is: A game. It's a game that uses violence, but it registers as a game, as opposed to a real flight/fight situation.

 

[Al68]

The way that video games register is in much the same way as two brothers wrestling does, as just what it is: A game. It's a game that uses violence, but it registers as a game, as opposed to a real flight/fight situation.

This is a good point. Unless the child is very young, or has a mental problem already, he or she wouldn't get all confused about reality vs fiction as some suggest.

Of course the question before the court was not whether this law was good policy or not, it was whether the law violated the constitution or not.

 

[drankin]

How so? The ruling means kids can take their money, buy their game, and the parent never knows as long as the kids don't play it in front of their parents. A ruling upholding the ban of sale to minors would have recognized the parents' right to determine what their children digest for entertainment - the only way the kids could get the game is if an adult bought it for them.

This is a ruling protecting video game manufacturers' First Amendment rights to sell things to your kids regardless of how you feel about it.

IMO, what you are suggesting is that the government can or should be able to babysit what a child purchases so the parent doesn't have to. I just don't subscribe to that line of thought.

 

[Ryumast3r]

This is a good point. Unless the child is very young, or has a mental problem already, he or she wouldn't get all confused about reality vs fiction as some suggest.

Of course the question before the court was not whether this law was good policy or not, it was whether the law violated the constitution or not.

Aye, I'm thinking of more moral/ethical reasons for it to be brought up in a lower court, but you are correct. The SCOTUS was only concerned about the first amendment, and not really ethics/morals as others may see them.

 

[BobG]

IMO, what you are suggesting is that the government can or should be able to babysit what a child purchases so the parent doesn't have to. I just don't subscribe to that line of thought.

Does this apply only to video games, or does it also apply to cigarettes, alcohol, and adult videos - commodities legal for adults, but illegal for children?

I think there's adequate precedence for restricting what can be sold to minors in general, even if video games are a fairly recent development.

 

[talk2glenn]

Does this apply only to video games, or does it also apply to cigarettes, alcohol, and adult videos - commodities legal for adults, but illegal for children?

Really? Relevance? With the exception of the last, none of these things qualifies as protected speech under the First Amendment, and adult videos are subject to limited protection under the same (the balance of protecting speech and protecting public decency). Video games are speech. Cigarettes, obviously, are not.

 

[BobG]

Really? Relevance? With the exception of the last, none of these things qualifies as protected speech under the First Amendment, and adult videos are subject to limited protection under the same (the balance of protecting speech and protecting public decency). Video games are speech. Cigarettes, obviously, are not.

What you say is absolutely valid if you put children's rights on an equal footing with adult rights. But that has to be an assumption that's accepted for your logic to carry through.

Switching to a different right, children don't enjoy the same rights to gun ownership that adults do, either.

I don't think there has ever been an assumption that children enjoy full protection of their rights under the Constitution. They have limited rights.

And as to the relevance of my answer, it was relevant to the post I replied to, which seemed to deal with purchases in general.

In any event, the relevance of the First Amendment protection of free speech in the decision was primarily applied to the maker of the video games, not the buyers (although access to different view points of speech is certainly an important aspect of free speech protection). The relevant question is whether denying video game makers (or pornographic movie makers, sex education teachers, abortion counselors, military recruiters, religious cults, for that matter) access to a child audience an unreasonable restriction of their free speech rights.

I think those rights have to be balanced against the rights of a parent to have some control over their own childrens' environment (for better or worse, and it's not always for better, given some extreme examples of parents that believe in faith healing instead of modern medicine, parents that are preparing their kids for the iminent end of the world, etc).

 

[mege]

BobG - I think your presumption is that parents are 100% absent from the equation. That isn't the case. In fact, this decision is relying on parents to make appropriate decisions for their children/wards.

A child is free to buy a video game if they want, if the store is willing to sell it*. That does NOT mean a child is protected from their parents confiscating said violent game. Children do not gain some right to circumvent their parents wishes with this ruling.

I feel this is a fatal flaw in your reasoning: "I think those rights have to be balanced against the rights of a parent to have some control over their own childrens' environment" - the parents haven't lost rights with this decision. If anything, parent's rights have actually been preserved because they can still choose to allow their children to buy violent video games.

*remember that many stores already self-regulate M rated games, this is something that I wish the ruling had at least acknowledged (I skimmed the document but didn't see anything about it)

All that said: I feel this type of law is ceremonial at best anyhow. How many 12 year olds go into a Best Buy unsupervised and spend $60 on a game? The CA law is just a few angry mothers crying wolf because they're too ignorant/lazy to do the proper investigation into their own children. Personally, my kids (if/when) will have limited access to video games - I understand the system and can hopefully make appropriate choices to their maturity level.

 

[ideasrule]

Does this apply only to video games, or does it also apply to cigarettes, alcohol, and adult videos - commodities legal for adults, but illegal for children?

The current policy on cigarettes, alcohol, and adult videos is not rational in any sense of the word. Tobacco and alcohol are both very harmful and very addictive compared to drugs like marijuana, yet the latter is illegal and the former is not. The reason has nothing to do with protecting people's health, yet how many billions of dollars have been squandered on a futile war on drugs? In most US states, the legal drinking age is 21. How many percent of underage college students do you think have easy access to alcohol? As for video "indecency" laws, don't get me started. It seems that the entire system was set up with absolutely no information about the experiences of either current kids or current teenagers. The idea that teenagers (even young teenagers) wouldn't be familiar with the content of an "adult video" is ludicrous, because they've probably seen much more disturbing websites already, and forbidding the sale of adult videos does nothing except contribute to the forbidden fruit effect.

As for violence in video games, I'm not familiar with the research mentioned by Ryumast3r, but I can see why it might be true. The next time I find myself in alien-controlled abandoned city, armed with a machine gun, running through a canal, and trying to shoot down attacking alien drones, the violent video game I played might affect my real-life behavior. Otherwise, I don't see how the game's scenario would apply to a fight I have with (for example) my friend.

 

[BishopUser]

I read the ruling, and while I agree with it, I was slightly confused. Part of the majority opinion said something to the effect of "there is no precedent in the US to restrict minors to exposure to violent entertainment" or something like that. What about "R" rated movies, and the fact that no one under 17 can be admitted without an adult? What about music CDs which are labeled "explicit," and will not be sold to minors? Are these things simply voluntary or are they mandated by law? Can an extremely violent "R" rated movies be shown on cable TV without fines imposed by the FCC?

 

[drankin]

I read the ruling, and while I agree with it, I was slightly confused. Part of the majority opinion said something to the effect of "there is no precedent in the US to restrict minors to exposure to violent entertainment" or something like that. What about "R" rated movies, and the fact that no one under 17 can be admitted without an adult? What about music CDs which are labeled "explicit," and will not be sold to minors? Are these things simply voluntary or are they mandated by law? Can an extremely violent "R" rated movies be shown on cable TV without fines imposed by the FCC?

I believe they meant a judicial precedent. Those laws were not challenged judicially that I'm aware of.

 

[BobG]

I read the ruling, and while I agree with it, I was slightly confused. Part of the majority opinion said something to the effect of "there is no precedent in the US to restrict minors to exposure to violent entertainment" or something like that. What about "R" rated movies, and the fact that no one under 17 can be admitted without an adult? What about music CDs which are labeled "explicit," and will not be sold to minors? Are these things simply voluntary or are they mandated by law? Can an extremely violent "R" rated movies be shown on cable TV without fines imposed by the FCC?

They're voluntary for movies in theaters.

The MPAA sets film ratings and theaters comply to ensure they'll continue to receive MPAA films.

Independent theaters showing independent films have no particular incentive to comply, and independent films have no way to rate their movies, since the MPAA only rates films from the major studios. None the less, independent films usually rate themselves using a very similar system to the MPAA (they can't use the MPAA ratings, since those are trademarked).

The criteria for rating violence is usually how much human blood can be shown. The violence itself won't get a movie an R rating or a NC-17 rating, but the more blood that's shown, the more restrictive the rating (with exceptions - violence in a historical context, such as the D-Day scene in Saving Private Ryan, usually get away with a slightly lower rating even with more graphic scenes).

I don't know many details on how CDs and video games are rated, or how strictly retailers abide by those ratings.

 

[Ryumast3r]

As far as I can tell, R rated movies are regulated by the theatres, not by law... though I could be wrong (and probably am in this case, I have basically no idea about this type of legal precedence). Also, R rated movies can imply extreme violence, or sexual content, making the violent video games slightly different than the R-rated movies.

 

[BobG]

Any local laws in place for movies would most likely be for sex.

In fact, the MPAA's NC-17 rating caused a lot of heartburn with moviemakers because some localities would take a short cut and base their restrictions on the MPAA rating; not the actual sexual content of the movie.

While music wasn't rated when I was growing up, nor restricted (except on the radio by the FCC), I do remember the Roxy Music albums were always sold with opaque plastic over the album covers. And the Golden Earring album with Radar Love changed their cover after initial release because of the problems the album cover caused for them in many cities (in fact, a vinyl album with the original cover is a bit of a collector's item).

 

[mege]

I read the ruling, and while I agree with it, I was slightly confused. Part of the majority opinion said something to the effect of "there is no precedent in the US to restrict minors to exposure to violent entertainment" or something like that. What about "R" rated movies, and the fact that no one under 17 can be admitted without an adult? What about music CDs which are labeled "explicit," and will not be sold to minors? Are these things simply voluntary or are they mandated by law? Can an extremely violent "R" rated movies be shown on cable TV without fines imposed by the FCC?

None of these are laws, they're all industry self-regulation (except the TV decency laws, not ratings, which aren't age-specific - but that's based on seperate, but parallell, guidelines than just being rated R).

The wiki overviews for each of the rating systems do a pretty good job explaining their origin and voluntary nature. (note: while the TV ratings are setup and regulated by the FCC there is no enforcement clause, except for mandating V-Chips)
http://en.wikipedia.org/wiki/MPAA_movie_ratings
http://en.wikipedia.org/wiki/Parental_Advisory
http://en.wikipedia.org/wiki/TV_Parental_Guidelines

 

[daveb]

The MPAA rating system is entirely voluntary (well, not entirely since it may be difficult to get distribution if you aren't rated).

 

[TheStatutoryApe]

I listened to the oral arguments for the case a few months ago. It was actually entertaining. And the state's defense was rather poor. An issue brought up quite a bit was the vagueness in the definition of "deviant violence" as they termed it in proceedings. Alito's concurrence goes into this and he uses it as his primary basis for concurring with the majority opinion.

I also agree with Scalia's reasoning. It seems fairly sound to me. Considering his comments during the oral arguments, and what I have read and heard from him before, I was fairly certain he would come down on the side he did.

 

[talk2glenn]

(well, not entirely since it may be difficult to get distribution if you aren't rated).

Nothing is mandated by the state, however; theatres are free to carry or not carry unrated films, at their discretion. The United States is the only country in the world, to my knowledge, that does not have a government mandated media ratings system. And this is something to be proud of.

It is a tragedy of civics education that people don't understand this important fact.

 

[klimatos]

Does this apply only to video games, or does it also apply to cigarettes, alcohol, and adult videos - commodities legal for adults, but illegal for children?

I don't know how it is in your town, but in mine minors have no difficulty in obtaining cigarettes, alcohol, and adult videos--not to mention marijuana, crack, heroin and the services of prostitutes. If your town is different, I envy you.

Legal prohibition on the sale of things for which a ready market exists has never worked in U. S. history. I doubt if it ever will. Most well-brought-up children will shun these temptations--although they may give them a brief try. Mavericks from this group and those not well-brought-up will succumb. It is a harsh view, but I think of it as natural selection at work.