Violent Video Games to Get Their Day in Court

If you’re under 18, and want to buy the latest entry in the popular “Blood-Drinking Hell Guys” (not a real video game) series of video games, you might want to do so before the Supreme Court has its say (also reported here), especially if you live in California, or one of the several other states which have passed laws banning the sale of violent video games to minors.

Several states have passed laws which restrict, or completely ban, the sale of violent video games (generally, any game with an ESRB rating of “M”) to minors under the age of 18. Game retailers, along with the Entertainment Software Association (ESA) challenged all of these laws as unconstitutional, and, so far, every federal court that has considered the issue has agreed with them, and struck down the various state laws.

Most recently, the 9^th Circuit Court of Appeals struck down a California law which would have barred retailers from selling violent video games to minors, and imposed strict labeling requirements on any such games (A large marker on the cover reading “18+”). This law was supposed to go into effect in 2006, but it was challenged in federal court immediately, which issued an injunction barring its enforcement. Accordingly, the law has never been put into effect.

In Video Software Dealers Association v. Schwarzenegger (links to opinion, .PDF), the 9^th Circuit found that the law was a content-based restriction on speech. A content-based restriction on speech is one which restricts certain messages, opinions, or subject matter more than others, rather than simply regulating the time, place, and manner of speech (without regard to its content). It is extremely difficult for these types of restrictions to stand constitutional muster.

Furthermore, the court saw the labeling requirement as unconstitutional compelled speech. It’s important to note that freedom of speech also means the freedom from being compelled to say something, especially opinions that you don’t agree with. While laws requiring businesses to disclose purely factual information are highly permissible, the whole premise of California’s law, and the labeling requirement, was that violent video games cause psychological harm to minors. The evidence supporting this position is far from conclusive, making it essentially the state’s opinion, which the state cannot force a private party to express.

Any regulation of video games tends to whip fans into a state of nerd rage, and the quality of arguments made by video game fans (most with little knowledge of the law) make on Internet forums and elsewhere make it very, very easy for people to dismiss them, especially if they were already inclined to do so.

While we can’t expect any group or individual to advocate for every issue they find important (we all need to live our lives, and prioritize these things, after all), when a person who knows more about the fictional history of Hyrule than the U.S. Constitution becomes extremely indignant over something which is, in the scheme of things, quite trivial, it’s pretty difficult to take their position seriously, regardless of its merits.

I see this as quite unfortunate, because I happen to agree that laws like this are unconstitutional, as well as unnecessary. I also happen to enjoy video games on occasion. Any law which places any restriction on any form of expression based solely on its content, which laws like this do, must have an extremely compelling justification. California’s justification for this law, that violent video games make children violent, has not been conclusively proven in a scientific study, though there is admittedly some evidence to support this conclusion (and just as much to undermine it).

I’ll be the first to admit that the expressive content found in the majority of video games is of little social value. However, that is changing. Many games are beginning to tell complex, sometimes-engrossing stories. Now, most of these stories aren’t particularly deep, innovative, or seeking to break any new artistic ground. However, the artistic merit of speech is of absolutely no relevance when determining if it is protected by the 1^st Amendment.

I believe that, when the government starts putting up barriers around ANY type of expression, regardless of its social value, it is starting down a dangerous path. After all, there were times when state and federal governments were considering censoring motion pictures, and the specter of government censorship lead the film industry to enact some extremely restrictive and puritanical rules for self-censorship. It wasn’t until fairly recently (throughout the last half of the 20^th century) that the U.S. Supreme Court fully extended 1^st Amendment protection to movies, allowing the film industry to stop blatantly censoring itself, and move to a kinder, gentler self-censorship found in the current film rating system. But I digress.

My point is that there have always been new forms of media which some people don’t understand. For some reason, people always assume that new media isn’t protected by the First Amendment. I’m not sure why people assume this, but it probably has something to do with the fact that they aren’t yet established as ways to deliver “real” information or entertainment. Gradually, this changed. Will this happen with video games? Maybe, maybe not. But whether or not a particular form of expression is “taken seriously” shouldn’t have anything to do with a court’s decision about whether or not the content of the expression is protected. It’s tempting to give legislatures more leeway when it comes to regulating the content of video games, but perhaps, when considering such a law’s constitutionality, a court should ask if an identical restriction, applied to movies or books, would be permissible.

If the answer is “no,” so it should be with any other medium.