Violent Video Games and Judicial Common Sense

Today, the United States Supreme Court is hearing oral arguments in the state of California’s appeal of a Ninth Circuit decision declaring unconstitutional a statute enacted in that state which restricted minors’ access to graphically violent video games. The Circuit was only one of the more recent federal courts of appeal to strike down such laws because they believed the laws violate the free speech clause of the First Amendment. (One of the earliest was authored by one of the more prominent conservative members of the judiciary, Richard Posner, which struck down an ordinance enacted in Indianapolis.) Every such statute or ordinance which has been reviewed in the federal courts of appeal has been declared unconstitutional.

These cases arose after a number of states and local governments acted to restrict minors’ access to graphically violent video games in the wake of school shootings like that at the Columbine High School in Colorado. These lawmakers acted after it was disclosed that the shooters were avid players of violent video games and some investigators found similarities between their methods and those employed in playing those games.

Researchers have reached different conclusions about the linkage between playing violent video games and violent behavior. Some found a strong link, others found a correlation but could not establish causation, and yet others found little linkage at all. Indeed, several researchers have noted that youth violence has actually declined in recent decades.

Most of the cases have addressed two issues: are video games “speech” as that term is used in the First Amendment and, if so, may the state nonetheless restrict minors’ access to games in which the player participates in acts of graphic violence? Having examined past cases defining speech and applying it to the types of games at which these laws are directed, it seems clear to me that video games are speech, or more precisely a medium of speech.

That is not a question subject to serious dispute. The more disputable issue is whether the American Constitution permits states and localities to restrict minors’ access to such games. I believe the answer is yes.

More than forty years ago, the Supreme Court upheld a New York law restricting minors’ access to pornographic “girlie magazines” (which were legal for adults), finding them to be harmful to minors. The court found that the state was justified in doing so despite the lack of scientific certainty about whether they would actually harm young people, on the basis that parents have an interest in the ethical and moral development of their children and have a right to expect help from the state in rearing their children to be ethical and moral adults.

Judge Posner and others have distinguished this case from graphic video games on the basis that the Court has never approved restrictions of minors’ access to speech which was not in some way sexually explicit. Strictly speaking, this is true, but it fails to answer the question as to why the Court approved restricting minors’ access to sexually explicit speech and whether that same rationale justifies restricting their access to graphically violent video games.

The lower appellate courts have never effectively addressed that issue. Let’s hope that the justices on the Supreme Court will.

My conclusion, argued in a lengthy law review article published in the University of Richmond Law Review and submitted to the Supreme Court, was that the same rationale that justifies restricting minors’ access to “girlie magazines” justifies restricting their access to graphically violent video games. Indeed, I believe the case for restricting access to such games is even more compelling.

In his opinion, Judge Posner noted that violence is an ageless theme of literature and the theater and one to which youth have been exposed from time immemorial. What he failed to do was make the common sense distinction between reading about Brutus slaying Julius Caesar in Shakespeare’s play or seeing it acted on a stage or in a movie, and being a virtual assassin in an interactive video game. To compare the two is a category mistake. They simply are different in kind and not merely in degree.

More importantly, there is no more need to find some scientifically certain psychological harm to minors who play violent games to justify restricting their access to those games than there is to find scientific certain psychological harm to teens who view “girlie magazines.” The issue in the earlier case was not psychological harm, but impairment of the ethical and moral development of youth. Just as viewing soft core pornography might cause some young men to come to view women as no more than objects to satisfy their lusts, playing violent video games may cause some players to develop insensitivity toward their fellow human beings and their suffering.

In another case, the Supreme Court upheld an order by the Federal Communications Commission restricting the times at which broadcasters could air George Carlin’s “Filthy Words” monologue so that minors would be less likely to hear it. In that case, the Court based its decision on the routines “effect of debasing and brutalizing human beings.”

Compare Carlin’s seven filthy words (you can find recordings on the routine on the internet) to video games such as “Manhunt,” in which the player must kill or be killed by assassins who are tracking him down in a game based on a snuff video (one level involves the player decapitating an assassin with a machete), or “Grand Theft Auto: Vice City,” in which the player has sex with a prostitute, who he then kicks in the groin until blood spurts out and repeatedly hits in the head with a golf club, or “RapeLay”, in which the player stalks and rapes women for points.

If Carlin’s seven filthy words, which are just words, has “the effect of debasing and brutalizing human beings” so that restricting minors’ access is constitutional, why wouldn’t the same justification be even more applicable to the games I described and hundreds more like them? Yet the lower courts have uniformly failed to make this common sense analogy.

More than 60 years ago, Justice Robert Jackson observed, “There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” The restricting of minors’ access to graphically violent video games is a clear example of where “a little practical wisdom” needs to trump “doctrinaire logic.” Finally, the Court has agreed to hear a case addressing these questions. Let’s hope a little practical wisdom prevails.

Gregory K. Laughlin is law library director and associate professor of law at Cumberland School of Law at Samford University, Birmingham, Alabama.