By Jesse J. Holland
WASHINGTON – The Supreme Court ruled last Monday that it is unconstitutional to bar children from buying or renting violent video games, saying government doesn’t have the authority to “restrict the ideas to which children may be exposed” despite complaints that the popular and fast-changing technology allows the young to simulate acts of brutality.
On a 7-2 vote, the high court upheld a federal appeals court decision to throw out California’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors’ rights under the First Amendment, and the high court agreed.
“No doubt a state possesses legitimate power to protect children from harm,” said Justice Antonin Scalia, who wrote the majority opinion. “But that does not include a free-floating power to restrict the ideas to which children may be exposed.”
Video game makers and sellers celebrated their victory, saying the decision puts them on the same legal footing as other forms of entertainment. “There now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment,” said Bo Andersen, president and CEO of the Entertainment Merchants Association.
More than 46 million American households have at least one video-game system, with the industry bringing in at least $18 billion in 2010. The video game industry has its own rating labeling system intended to warn parents, with the rating “M” placed on games that are considered to be especially violent.
But at least two justices, Chief Justice John Roberts and Justice Samuel Alito, indicated they would be willing to reconsider their votes throwing out the law, taking issue with the sweep of the court’s holding.
“I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem,” Alito said, suggesting that a narrower state law might be upheld.
And an unlikely duo, conservative-leaning Clarence Thomas and liberal-leaning Stephen Breyer, agreed that the California video game ban should have been upheld, but for different reasons.
Breyer said the court’s decision creates an insurmountable conflict in the First Amendment, especially considering that justices have upheld bans on the sale of pornography to children.
“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Breyer said. “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?”
And Thomas said the majority read something into the First Amendment that isn’t there.
“The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Thomas wrote.
Leland Yee, a child psychologist and California state senator who wrote the video game ban, told The Associated Press Monday that he was reading the dissents in hope of finding a way to reintroduce the law in a way it would be constitutional.
“It’s disappointing the court didn’t understand just how violent these games are,” Yee told The AP.
California’s 2005 law would have prohibited anyone under 18 from buying or renting games that give players the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Parents would have been able to buy the games for their children, but retailers who sell directly to minors would have faced fines of up to $1,000 for each game sold.
That means that children would have needed an adult to get games like “Postal 2,” the first-person shooter by developer Running With Scissors that features the ability to light unarmed bystanders on fire. It would also apply to the popular “Grand Theft Auto IV,” a third-person shoot-’em-up from Rockstar Games that allows gamers to portray carjacking, gun-toting gangsters.
The California law never took effect. Lower courts have said the law violates minors’ constitutional rights, and that California lacked enough evidence to prove that violent games cause physical and psychological harm to minors. Courts in six other states, including Michigan and Illinois, reached similar conclusions, striking down similar bans.
Unlike depictions of “sexual conduct,” Scalia said, there is no tradition in the United States of restricting children’s access to depictions of violence, pointing out the violence in the original depiction of many popular children’s fairy tales like Hansel and Gretel, Cinderella and Snow White.
Hansel and Gretel kill their captor by baking her in an oven, Cinderella’s evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, Scalia said.
“Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore,” Scalia added.
And there is no definitive proof that violent video games cause harm to children, or any more harm than another other form of entertainment, he said.
One doctor “admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner or when they play video games like Sonic the Hedgehog that are rated ‘E’ or even when they ‘view a picture of a gun,” Scalia said. “Of course, California has (wisely) declined to restrict Saturday morning cartoon, the sale of games rated for young children, or the distribution of pictures of guns.”
Tim Winter, president of the Parents Television Council, said the decision created “a constitutional authorized end-run on parental authority.”
“I wonder what other First Amendment right does a child have against their parents’ wishes?” he said. “Does a child now have a constitutional right to bear arms if their parent doesn’t want them to buy a gun? How far does this extend? It’s certainly concerning to us that something as simple as requiring a parental oversight to purchase an adult product has been undermined by the court.”
The case is Brown v. Entertainment Merchants Association, 08-1448.