Unless you spent the last year hiding in a cave playing Gears of War and Elebits, you’ve probably noticed that video games continue to be a great way for politicians to score points with the obsessively-worried-with-no-rational-basis constituency (I usually just call them “crotchety old people,” where, since this is a legal article and I’d hate to be vague, old is defined as “belonging to any generation that is unable to recognize the sequence ‘up, up, down, down, left, right, left, right, B, A, start’”).
Of course, what could be wrong with censoring video games? As spokesperson for New York State Senator Leland Yee, the sponsor of the latest video game censorship law, points out, “we prohibit children from smoking…we regulate driver’s licenses. We prohibit alcohol. We prohibit lots of things from children, and we think it’s logical that kids should not be able to purchase these games on their own.”
Assuming you haven’t already lost hope for humanity and slit your wrists, you may take solace in the fact that while the legislative and executive branches of the government are complete tools, they still have to answer to the higher calling of the constitution as interpreted by the judicial branch. Of the nine states that passed laws trying to restrict minors’ access to violent video games, all have been struck down in either the district or circuit courts. But why, Horatio, why is the constitution so awesome? I’m glad you asked, read on to find out.
The First Amendment and its exceptions
For those of you children left behind by our country’s education system, the first amendment guarantees, amongst other things, freedom of speech, the right to express yourself through any number of media, including video games. This freedom, however, is not universal. For instance, congress has the right to legislate where and when you are allowed to speak (protests have to register with city hall if they intend to block streets, you can’t yell “fire” in a crowded movie theater without getting into some trouble). Regulating the content of speech is a bit harder as all content regulations are presumptively invalid and thus trigger strict scrutiny. Strict scrutiny requires that, in order for a law to be held constitutional, the law must promote a compelling state interest, be narrowly tailored and use the least restrictive means to further this compelling state interest, and then be shown to actually further this compelling state interest.
Two categories of speech whose content have previously been ruled unprotected by the first amendment are fighting words, that is speech that incites violence, and obscenity, defined by Justice Warren Burger in Miller v. California as “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
This gets a bit trickier when we’re dealing with minors. Back in the 60’s a case called Ginsberg v. New York allowed that the government can loosen the definition of obscenity for minors because it has a compelling state interest to protect minors from abuse, and in this instance “girlie magazines” that would normally be deemed indecent but not obscene for adults could be regulated as obscene for minors. Finally, a ruling in Sable Communications upheld that this compelling state interest included the protection from both physical and psychological harm, except where this could be used as a pretense for government imposed thought control on minors. So, where do video games lie in all this legal mess?
The first question asked by the courts in ruling on a case is what previous case serves as the precedent on which the case is to be decided. The Electronic Software Association (ESA) has argued, successfully in some cases, that these cases ought to be decided under the precedent of the case of Brandenburg. Brandenburg revolved around a KKK leader who held a rally in which he encouraged members to break the law. Brandenburg was prosecuted for using “fighting words” in his speech but was released on appeal because his words did not intend to incite “imminent lawless action” but merely advocated violence in general. Similarly, the ESA argues that even if states can claim that videogames can increase aggressive thoughts or behavior in children, they do not incite imminent lawless action and thus can not be regulated under the first amendment.
The states defend their laws relying on the aforementioned Ginsberg v. New York as precedent, claiming that they have the right to protect minors from the psychological harms of video games. The ESA responds that this is not appropriate because Ginsberg was only meant to apply to obscene materials, not violent ones, but the general opinion of the courts has been that just because violence has not been tested as a category of speech does not mean it is necessarily protected. Two defining court cases have been decided under the Ginsberg precedent, and they are American Amusement Machine Association, et al. Plaintiffs-Appellants, v. Teri Kendrick, et al.,and Video Software Association and Electronic Software Association v. Arnold Schwarzenegger et al., the earliest and latest court rulings on video game legislation, respectively.
Kendrick involved a Minnesota law trying to regulate who could play violent video games and where those games had to be placed in an arcade. Decided under Ginsberg, the state still must show that the law promotes a compelling state interest, is narrowly tailored and employs the least restrictive means, and the law actually furthers the compelling state interest. In Kendrick, Judge Posner writes that unlike sexually explicit material, which we have traditionally shielded children from, violence has always pervaded our culture. From Homer’s Odyssey to Bram Stoker’s Dracula and even the fairy tales of Hans Christian Andersen and Grimm, children are forced to deal with violence. Given that the state has not tried to regulate these other media, Posner finds it hard to believe that the state can actually be furthering any interest it might have in shielding children from psychological harm.
He admits that video games might initially seem to pose a unique harm because of their interactivity, but elaborates that “this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
Finally, Posner concludes that violence has always existed in children’s literature because it helps their growth, shielding them from this literature might only serve to cripple their later ability to deal with violence in the real world. Decided in 2001, when House of the Dead was considered the most violent video game in arcades, Posner did issue the caveat that “If the games used actors and simulated real death and mutilation convincingly, or if the games lacked any story line and were merely animated shooting galleries (as several of the games in the record appear to be), a more narrowly drawn ordinance might survive a constitutional challenge.” Now, lets fast forward six years and see where we stand today.
Electronic Software Association v. Arnold Schwarzenegger
Appealing directly to the Miller-test for obscenity, California legislature proposed an Act that:
restricts the sale and rental of certain violent video games to minors. Id. § 1746.1(a). The Act contains a two part definition of a “violent video game”:
(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
Judge Whyte of the ninth circuit court delivered the opinion. Using strict scrutiny, he concluded that the state did indeed have a compelling interest to protect minors from psychological harm, as outlined in Sable Communications. His first problem with the California legislation was that he did not find it to be narrowly tailored or to use the least restrictive means possible. First, he immediately struck down the (B) definition for video games for being too broad as it would declare all games with artistic merit unconstitutional solely on the basis of including torture.
He then goes on to strike down the (A) definition as not being narrowly tailored because it treats all minors the same. Legislation should reflect the fact that children from age 15-17 can process violence much differently than children who are 6-8. Whyte alludes to Posner’s claim that children need to learn to deal with violence, saying that since one can fight in a war and vote at the age of 18, legislators should provide evidence that exposure to violence has the same negative effects on a 17 year old as it would a 14 year old. Next, Whyte finds some of the terms (such as “image of a human being”) to be too vague to be constitutionally enforcible, as there is a large difference between the cartoon-style Violence of House of the Dead and more realistic games like Manhut.
Whyte concludes that the law does not use the least restrictive means because no showing was made by the California legislator that the ESRB has not been effective in regulating the distribution of violent video games. This comes from United States v. Playboy Entertainment Group, Inc., which states, “When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals” So, to sum up, California’s act managed to violate the second prong of strict scrutiny (narrowly tailored and least restrictive means), in three separate ways… uh, gg, n00bs.
Finally, Whyte finds that the act does not further the interest of protecting children from the psychological harm of violence because the evidence provided by the state (all video game legislation relies on evidence by a Dr. Anderson) does not establish any causal link between playing violent video games and increased aggression. Furthermore, the state makes no finding that the effects of video games are more deleterious than other media, or that video games, absent the existence of other violent media would contribute to violent behavior. Thus, the law is underinclusive for not equally regulating all media that could potentially increase aggression, and overinclusive for trying to regulate media that has not been linked to increased aggression.
In conclusion, while states may keep trying to win votes by pandering to old people who are afraid of video games, as this last case should make clear, we are a long way off from seeing any sort of legislation that can pass muster under the constitution. The state would need to provide ample evidence that the ESRB is broken (which they are certainly trying their best to), but also need to provide evidence not only showing a causal link between video games and aggression but proving that video games are unique in this link as opposed to other media. Of course, even if this were all to happen, video games would still have to be shown to have no literary merit, and given that Posner deemed House of the Dead to have literary merit (and also claimed that Mortal Kombat was feminist), I can only wish our wayward congressman the best of luck in their nefarious aims.