Earlier this week, the United States Supreme Court struck down a 2005 California law banning the sale and rental of video games depicting the “killing, maiming, dismembering or sexually assaulting an image of a human being” to minors. (Editor’s note: The video gaming industry already has its own ratings system, but it does not carry force of law.) The court’s 7-2 rationale for its decision was that California’s attempt to restrict access of certain games constituted a violation of the First Amendment.
One question the case dealt with is why violent content should be placed in a different category than pornography, which is regulated and restricted when it comes to children’s access to it. Dissenting Justice Stephen Breyer asked, “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”
Justice Antonin Scalia, who wrote the majority opinion, countered, “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.” He added that America has a long tradition of limiting obscene materials (like pornography), but we have no similar tradition when it comes to limiting violent ideas or images. Obscenity, along with instances such as shouting “Fire!” in a theater, are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Violence in media, in contrast, has historically never been restricted. Unpacking that logic, Scalia said:
California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy."
Breyer (along with Justice Clarence Thomas) rejected that argument.
This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.
While some of us may lament the court’s unwillingness to take video game violence as seriously as it does sexually implicit imagery, the clear message here is that parents, not governments, are the ones who are ultimately responsible for images and ideas their children are exposed to.
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