Video games, parents and the First Amendment

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The U.S. Supreme Court mixed things up at the end of its annual term with a decision on video games.

A 7-2 Court majority struck down a California law barring the sale of violent video games to minors, requiring the packaging of such games to be labeled with “18,” and imposing a fine up to $1,000 on violators.

The majority decision that served up a full-throttle extension of the First Amendment’s right of free speech to hyper-violent video games was written by Justice Antonin Scalia, the Court’s leading conservative thinker. The moderate-to-conservative Anthony Kennedy, and three liberals — Ruth Bader Ginsburg, Elena Kagan and Sonya Sotomayor — joined Scalia. In addition, the conservative Samuel Alito, supported by Chief Justice John Roberts, another conservative, agreed in striking down the law but differed in their reasoning. And finally, Justice Clarence Thomas, a conservative, and Stephen Breyer, a liberal, offered different dissents.

That’s a rare breakdown on the Court, but given the issues, perhaps not all that surprising. After all, I found myself sympathizing with various viewpoints.

As chief economist with a small business group, I understand concerns from parts of the business community. Retailers, for example, faced worries about increased costs and the risk of fines. And keep in mind that video gaming is a significant and growing business. The Entertainment Merchants Association reports that 35,000 retailers across the nation “sell and/or rent DVDs, computer and console video games, and digitally distributed versions of these products,” and such home entertainment adds up to a $35 billion industry.

The Entertainment Software Association, representing companies that publish computer and video games, points out that “computer and video game companies directly and indirectly employ more than 120,000 people in 34 states,” with the average salary for direct employees being $90,000.

The EMA and ESA brought this case, and obviously were pleased with the Court’s decision.

The industry also has a rating system that aids parents in understanding the content of video games. As Justice Scalia noted, “In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, ‘the video game industry outpaces the movie and music industries’ in ‘(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.’”

This raises a question: Were California lawmakers simply piling on to score political points?

As a novelist, I also understand the uneasiness felt by the creators of games in having the government — through politicians, their appointees or the courts — deciding, for example as noted in the California law, if a video game lacks “serious literary, artistic, political, or scientific value for minors.”

Justice Scalia wrote: “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). That suffices to confer First Amendment protection.”

But then there is my role as a parent working to keep inappropriate materials away from my children. Justice Alito described some of the worst video game violence: “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.”

He added: “When all characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different.”

Alito concluded that, while the California law is “not framed with the precision that the Constitution demands,” and therefore should be struck down, he “would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem.”

For good measure, Justice Beyer pointed out in his dissent, “The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. Beyer’s points are hard to argue with, and other long acknowledged limits on speech exist, namely, obscenity, incitement and fighting words. But there’s always the risk that additional exceptions to free speech will be twisted into something unrecognizable by original advocates.

The best scenario is to avoid government action if private action works. Raymond J. Keating can be reached at rkeating@sbecouncil.org