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Video Gaming Celebrates a Supreme Court Victory

by June 29, 2011
Guess what? You can still keep your kids safe without the new law

Guess what? You can still keep your kids safe without the new law

A California regulation that would ban the sale or rental of violent video games to minors met final defeat at the Supreme Court on Monday. The highest court in the land ruled that any level of government that would restrict the sale of violent video games to children (in this particular manner) would be in violation of the First Amendment right to freedom of speech. The law was first struck down by the 9th US Circuit Court of Appeals in Sacramento, and the decision to keep it that way was upheld by the Supreme Court in a resounding 7-2 vote.

The decision is being hailed as a victory for the gaming industry. Finally, say many gaming activists, thanks to the First Amendment ruling, video games are getting the same recognition as other forms of media, like movies, magazines and books. Had the decision gone the other way and the law had actually seen the light of day, retailers would have faced $1000 fines for selling violent video games to minors.

Antonin Scalia made the following observations of video games as they pertain to the First Amendment:

  1. Video games are entitled to full First Amendment protection just like books or movies. 
  2. The First Amendment forbids the regulation of violence. It does, however, allow for the regulation of sexually explicit material or obscenity.
  3. Children, too, benefit from the First Amendment. In the past, the Supreme Court has allowed governments to broadly regulate obscenity through regulation of the sale of girlie magazines to children.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones... No doubt a State possesses legitimate power to protect children from harm. But that does not include a free-floating power to restrict the ideas to which children may be exposed."

- Supreme Court Justice Antonin Scalia

Despite the Supreme Court victory, the Justices themselves vary widely in their opinions of kids playing violent games – like Grand Theft Auto IV, a game that famously allows players to (virtually) seek the services of a prostitute, then murder her in cruel ways. It does so cleverly, without legally crossing into the obscene, showing no actual nudity and only inferring what goes on in that Buick-looking convertible in an alley somewhere in GTA's answer to Brooklyn.

I write this, of course, having had a lot of GTA IV experience; but I must make it clear that I only game as characters with the utmost moral bearing and have never sought the services of a prostitute nor murdered anyone that didn’t have it coming. Jeez, now I can hear my surrogate father Clint Eastwood telling me… “We all got it comin’, kid.” (Unforgiven, 1992) Yes, I’m a media junkie!

Back on point, Justice Samuel Alito voted against the California restriction, but gave the caveat that the law was too vague. A properly constructed law might well acquire his vote in the future.

Two Justices who voted in favor of the law were an unlikely pair – the right-wing Bush appointee Clarence Thomas and the liberal Clinton appointee Stephen Breyer. Polar opposites of the political spectrum, both agreed with the California law but from two very different perspectives.

Breyer believes in the authenticity of studies that claim violent video games can cause harm to children, and believes it's the government's job to regulate these games. A truly stereotypical liberal, nanny-state view.

"The closer a child's behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm," Breyer says.

Meanwhile, Thomas' position is effectively that children simply do not have a First Amendment right, period, and that free speech is the responsibility of the parent. To Thomas, in typical right-wing form, free speech is a family values thing.

The whole violent video games issue opens the door for a fascinating look into American culture. Basically, the way the law exists today, children are free (through media simulation) to torture and subsequently murder a woman in the most brutal ways possible, in an alley somewhere in the hard streets of Brooklyn, NY. But if said simulated torture / murder victim has a wardrobe malfunction resulting in a brief nipple exposure – obscenity laws instantly mobilize to protect the child!

I have written many times of the inherent mistrust humans have of new technology, and as a tech-marketing writer, maybe I'm biased toward technology's warm, 60Hz embrace. But the whole video game controversy reminds me of another controversy stemming from another technology developed long ago that was once new and equally mistrusted…

It was said to rot the minds of children, acts of congress attempted to stem its tide and it was unilaterally reviled by adults. I'm speaking, of course, of the pulp-publishing phenomenon known as comic books, which I for one, still enjoy today – mind rotting or not. I still don’t trust adults who profess to tell me what media is or isn't healthy to consume.

Emily Bazelon, of the New York Times, may have said it best: "In the 1800s, dime novels were blamed for juvenile delinquency. In the early 1900s, it was early movies; in the 1950s, radio dramas and comic books; and next came TV and music lyrics."


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About the author:

Wayde is a tech-writer and content marketing consultant in Canada s tech hub Waterloo, Ontario and Editorialist for Audioholics.com. He's a big hockey fan as you'd expect from a Canadian. Wayde is also US Army veteran, but his favorite title is just "Dad".

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Recent Forum Posts:

GranteedEV posts on July 04, 2011 14:27
In essence, exposing kids to the image of assault and murder would be deemed legal, while the act is not. On the other hand, as it pertains to kids, seeing the image of a sexual act appears to be illegal, while the physical act itself, is not*.

Is it just me, or does anyone else find that kinda ironic?

No doubt, but it's essentially set in stone.

I doubt there's one of us here who hadn't seen a porno or slasher flick or mortal kombat by the time we were 14 to 16, and I don't think any of us were particularly disturbed by it. Yet it's our nature to hypocritically say that when it's the time of our children (especially daughters - don't deny it) to go through it, we wouldn't expose them to any of that, and for the rules/laws that are already in place, none of us would propose or vote to take them away. The day a politician makes a “motion to make porn legally accessible to anyone 12 or over”and wins public support, of course ain't coming, because of the hypocritical social construct of North America.

Regarding violent video games, i don't see it as problematic, same with R rated movies. I'd be more concerned about the actual quality of what my children are watching than what society has deemed appropriate. Are they watching “The Godfather” or “Scream Five”? Are they watching “Monster's Ball” or “American Pie”? Critical thinking is what's truly been lost today. And that applies to video games. They're essentially mindless; and that's a problem. The violence is not the underlying issue, but the lack of substance beyond that. The “xbox generation” seems to be unable to play a video game based on its merits “if it doesn't appeal to an adult crowd” - the 12 year olds of today would rather play 4 hours of mind-numbing Call of Suty killing sprees than some Super Mario Galaxy or Picross or something - and that to me is the real issue because the latter too are far more creative and thought provoking.

It seems quality games have lost the ability to draw in the younger crowds without resorting to cheap violence and lifelike graphics. The creativity is what's gone - in essense there's a belief that children will inherently have short attention spans and limited comprehension skills until they're 18. If you treat children like this - of course they're going to be the same people making it into universities without being able to perform eighth-grade grammar and no interest in voting in elections - they're trained to think “life doesn't start until you're 18”. When I was a teen, I don't think I was unable to make informed decisions, but apparently, the law said I was.

I would rather my children grow up on a “Silence of the Lambs” than subject them only to “Transformers 3” and expect them to grow up as thoughtful individuals. The violence isn't the issue. It's the rest. The goal is for our children to be able to know when violence is AN issue and superior media actually portrays that. When violence/sex is a joke, the media is normally a joke too.

Context is everything, and that's why I'm not only against the idea of governments regulating violence or sex. I do think there needs to be limitations on anything where these things are “gratitiuous” but not on they themselves but rather their context.

If the above was a biased, egotistical self-absorbed elitist rant, sorry. :P And yes, Alex, you were disturbed when you were a kid, so i shouldn't have said none of us; sorry.
Wayde Robson posts on July 04, 2011 12:00
There is another piece to violent video game access - the industry itself.

I favor a self-regulatory industry that simply won't sell GTA IV to minors. The industry has already self-regulated with a ratings system that everyone understands and is emblazoned on the cover of every game.

The local EB or Future Shop should know enough not to sell the game to an 8-year-old. Sure, it gets grey when kids are a bit older and might be 16 and the person at the counter might sell it to them.

In those cases - I think the last thing we need is a system of fines and police involvement.

I wouldn't let my 8-year-old boy play GTA IV. I hope he can't buy it, but I'm not in favor of a state-regulation system.
Nihsnek posts on July 03, 2011 18:06
I don't want the govt. telling me what I can and what I can't watch or subject my kids do (within reason). Glad this crap got shot down.
Rickster71 posts on July 01, 2011 07:39
GO-NAD!, post: 817657
…..The ruling is essentially saying that it's fine to expose our kids to images of people being brutally killed, while it's morally repugnant to expose them to the portrayal of a couple engaged in a sexual act. I have a problem with “the man” making that decision, instead of parents. The court is imposing its own morality (or the US constitution is, if you want to look at it that way). I think it's hypocritical….

Well said.
The “man” being a group a do nothing politicians trying to win the hearts and minds of a very big voting block of soccer moms.
Basically they're saying, “Let us raise your kids, so you don't have to.”
majorloser posts on June 30, 2011 16:09
lsiberian, post: 817513
Yeah video games make us so bad.

Nah, just the porn
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