Minors are free to purchase video games that depict violence and rape, without parental supervision and in spite of a ratings system, says the Supreme Court. In its recent decision in Brown v. Entertainment Merchants Association, the Court struck down a California law banning the sale of violent video games to minors as an unconstitutional limitation on the First Amendment right to free speech. The case offers a classic debate between free speech activists on one side, and parents and state legislatures – who believe that exposure to increasingly violent video games promotes a propensity towards violence in children – on the other.
The California law in question would have imposed $1,000 fines on retailers caught selling violent video games to children. The law defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive” manner that appeals to “deviant or morbid interests.” The law also required that in order to be deemed violent, games must lack “serious literary, artistic, political or scientific value.”
Writing the majority opinion in the Court’s 7-2 ruling, Justice Scalia drew a line between obscene speech, which can be regulated, and violent speech, which has traditionally enjoyed more constitutional protections. Depictions of violence, Scalia wrote, have never been subject to government regulation. Scalia likened video games to the Grimms’ fairy tales and Saturday morning cartoons, both of which are riddled with violent depictions. Scalia wrote that these forms of creative expression are subject to free speech protections despite violent showings, and video games, which communicate ideas and possess artistic value, should be treated no differently.
“Like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” wrote Scalia. “That suffices to confer First Amendment protection.”
Scalia distinguished the Court’s opinion in this case from Ginsberg v. New York, where the Court held that material that is not obscene to adults might nevertheless be regulated if it is harmful to children. By applying different standards to adults and children, the Ginsberg court suggested that the state has the power to adjust the definition of obscenity as applied to minors. The holding in this case, however, shows that the court believes that violent video games do not reach the threshold for being considered obscenity for minors. “Because speech about violence is not obscene,” wrote Scalia, “it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in [Ginsberg].”
In the context of speech, recent case law suggests that the current Supreme Court has moved towards providing greater protections to violent speech under the reasoning of strengthening First Amendment rights. Last year, in United States v. Stevens, the court struck down a federal law that made it a crime to buy and sell dog fighting videos, as well as other depictions of animal cruelty.
Only a Parent Can Regulate
While the Court’s opinion is a victory for free speech activists and the multi-billion dollar gaming industry, the holding offers parents, who may be concerned about their children’s ability to access violent games, little reassurance. A minor may have a difficult time purchasing a ticket to an R-rated movie that depicts nudity and sex, but the same child can walk into a store and purchase a game like Grand Theft Auto, where the goal is to earn points by stealing cars, evading law enforcement, and murdering bystanders.
Moral arguments can be made on both sides of the fence, but it is clear that parents must take an active role if they wish to restrict their child’s access to violent games. Almost all video games now come with a rating, similar to movies, which can serve as a helpful guide for parents. The Entertainment Software Rating Board (ESRB), a non-governmental agency, assigns age and content ratings while overseeing industry-adopted advertising standards. Although the rating system is voluntary, virtually every video game is submitted for rating. Parents can use the rating system as a guideline for which games may be too violent or sexual in nature for their children.
Also on the radar of some activists is the possibility of video game warning labels. California Congressman Joe Baca, who was disappointed with the Supreme Court’s ruling in Brown, has authored legislation that would require video games to display warning labels similar to tobacco products. Thus far, however, the bill has yet to gain traction. All in all, even with a ratings system in place, the Court’s holding in Brown ensures that children are free to purchase violent video games, and the burden falls squarely on parents to keep track of their child’s gaming activities.