Is it hypocritical of the Supreme Court to allow violent video games to be sold to minors, while continuing to ban depictions of sex?
By **Sarah Jaffe**
By arrangement with Alternet.Org.
The state of California was set to impose a $1000 fine on anyone who sold violent video games to people under the age of 18. That is, until two lower courts struck down the law, saying it didn’t hold up under the First Amendment. The Supreme Court could’ve refused to hear the case and let the judgment of the Ninth Circuit stand, but instead they accepted the case, which usually means the justices have some thoughts on the matter that they plan on expressing. And in a 7-2 opinion, they upheld the judgment of the lower courts and ruled that video games, even ultra-violent ones, are protected speech.
Antonin Scalia wrote the majority opinion, joined by Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Samuel Alito wrote a concurring opinion, joined by John Roberts, and Clarence Thomas and Stephen Breyer wrote dissents.
Brown v. Entertainment Merchants Association isn’t just about video games. Within the decision, concurring opinion, and two dissents lie a host of issues, from whether pornography is really worse than depictions of violence to whether minors have any free speech rights at all (Clarence Thomas says, essentially, no). There’s a discussion of whether the inherent interactive nature of games makes them different from previous media and an acknowledgement that every medium before has produced a similar panic.
Each time the Court rules in favor of speech, it holds that free speech itself is a social good, regardless of the content of that speech. Yet, of course, the justices are human and their biases hold—most of them agreed with Scalia that there is nothing contradictory about protecting violence in video games and other forms of entertainment while banning the sale of pornography to minors and regulating sexual content. And the one justice, Breyer, who pointed out the hypocrisy inherent in that stance, was doing so to argue for upholding the law.
Each time a new medium develops, an attendant moral panic comes along with it. What are books/radio/television/comic books/video games/the Internet doing to our children? The justices in this case spent some time arguing about the nature of games themselves. Does the inherent interactivity of the games make them significantly different than prior media—enough so that they deserve to be regulated differently? Scalia points out that all media are to some extent interactive, while Breyer notes that video games, especially as the technology advances, are uniquely a combination of action and expression. He further points out that that games are excellent teaching tools precisely because of that interactivity.
Of course video games are different from other media. Or rather, as Kieron Gillen of RockPaperShotgun says, “It’s not that video games are different from other media. It’s that they’re all other media, plus extra stuff on top.” That extra stuff might be other players on the other side of the world, a movement-sensitive controller or a plastic guitar that turns you into a rock star.
But a court that rules that money spent on elections by a corporation counts as speech would be hard pressed to make the argument that a gamer alone in her bedroom is mixing action with expression even if she is jumping up and down and swinging a Nintendo Wii controller. So, does a game change if, as several of the justices expect, virtual reality technology makes it possible for a gamer to actually feel virtual blood splatter as a result of their mayhem? Does it become action as well as expression? Where is the line between reality and fantasy, and do games blur that line?
Robert B. Marks, in The Escapist magazine, noted that the military has for years been using more and more realistic technology to “dehumanize” enemy soldiers. He cited the book On Combat, by Lt. Col. Dave Grossman and Loren W. Christensen, which says that under extreme stress people tend to revert to instinct—and instinct tends to tell humans not to fire weapons at other humans. After World War II, the army switched to human-shaped paper targets, and the percentage of soldiers who would fire their weapons at others went from 15 percent to about 50. By Vietnam, when the army switched to targets that looked like actual humans, the rate went up to 90 percent. But, Marks pointed out:
Violent video games may have made us capable of killing—under a very specific set of
circumstances—but they haven’t conditioned us to be killers. It would be more accurate
to say we have been psychologically enabled to use deadly force in a combat situation,
whereas before we were not.
Months ago, the New York Times’s Seth Schiesel, discussing this case on GRITtv with Laura Flanders, noted that the military does use video-game-style simulation technologies to train its soldiers. At the same time, when the first WikiLeaks video hit, many commentators noted the reaction of the soldiers shooting Iraqis from a helicopter sounded like teenagers playing a video game. And with the changes in military technology, so that someone in the U.S. can now remotely control a predator drone that takes real lives, military technology is becoming closer to video games.
[W]hy is porn so much scarier and worthy of regulation than violent games?
“It really does raise questions about how we condition our warriors, who we want to protect us, but also to have an empathy and understanding of what it means to take a human life,” Schiesel said.
Breyer goes on to argue that leaving aside an arguably beneficial aspect to the use of even violent video games, it’s ridiculous not to apply a standard to violence in media similar to the standard for obscenity, which Scalia points out, “does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’”
He asks: “What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
Adam Serwer at The American Prospect replies: “Answer: The First Amendment as read by gun-toting prudes.”
Serwer’s point returns once again to the larger question of violence in our society. Michael Moore tackled the question in Bowling for Columbine, asking, “Are we a nation of gun nuts, or are we just nuts?” Moore also brought up the hypocrisy of blaming the Columbine shootings on the violent video games played by a couple of teenagers, while ignoring the bombs dropped that week, month and year.
Sex is, of course, part of nearly everyone’s life. It’s required for the continuation of the species. Violence, on the other hand, is usually considered to be antisocial—unless it’s taking place in the military, in which case, Breyer says, “When the military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose.”
So why, then, if this is true, does Breyer mind the idea of a generation of children raised with virtual military experience?
The justices cite plenty of studies on the possible harmful effects of violent video games. Of course, they don’t cite any studies on the harmful effects of a society engaged in four concurrent wars, that finds nothing wrong with the military recruiting high school students or advertising on television. There are no studies cited that explain why it makes sense to consider sex inherently more threatening to American youth than violence.
Clarence Thomas, of course, embodies the remaining Puritanism in the American psyche that leads us to have such conflicted views on sex and sexuality. Ever the strict constructionalist, he assumes that since the founding fathers were probably strict fathers, children these days still have no free speech rights. I’ll refrain from pointing out who else the founding fathers didn’t think had rights and belonged under the complete control of white men, but maybe Clarence Thomas would find no problem with a law that banned women’s access to video games or porn?
He cites the fact that, “the patriarchal family was the basic building block of Puritan society” as a basis for his argument, more than 200 years later, against the access of children to violent games. Thomas Jefferson’s parenting style also makes an appearance, though no mention of the children Jefferson had with his slaves.
Alyssa Rosenberg at Think Progress sees the connections between Thomas and Scalia’s arguments and the recent debate over “dark” young-adult literature:
Read together, these arguments form sort of a rough continuum. Thomas’s nostalgia
for Puritan parenthood is a remarkably honest statement of the cultural world many
conservatives seem to wish they lived in. And Scalia’s daft history explains why
cultural censors can’t turn back the clock—and perhaps why they don’t really want
to. Children can’t be protected from darkness, disappointment and pain by keeping
them away from culture that contains those themes. But they can figure out how to
move through a world in which those things are inevitable with the help of art and
In the end, I believe the Court made the right decision in striking down California’s law. The problems with violence in American society are not going to be solved by banning video games or even by banning the nightly news. They could be addressed by considering our attitudes toward violence and force as solutions to far too many problems, from the death penalty to extrajudicial assassination to invading country after country.
They could also be addressed by answering some of the questions Justice Breyer raised in his dissent. Just why is porn so much scarier and worthy of regulation than violent games? Blogger and professor Scott Lemieux agrees with Breyer that it’s not, but, “It’s just that the right answer is to level up to more free speech rather than leveling down to less.”
Copyright 2011 Sarah Jaffe
By arrangement with Alternet.Org.
Sarah Jaffe is a contributor to AlterNet and a freelance writer.