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USSC: Violent Video Games Don't Harm Minors—But Sex Does!

An analysis of yet another hypocritical Supreme Court decision on speech

USSC: Violent Video Games Don't Harm Minors—But Sex Does!

WASHINGTON, D.C.—Anyone who thought the Supreme Court's decision in Brown v. Entertainment Merchants Association—the "violent video game" case—was anything other than a slam dunk ... probably has as cynical a view of speech rights as any First Amendment attorney who's ever defended an obscenity case. After all, except for the "harmful to minors" aspect, the Supremes probably could have photocopied their decision in U.S. v. Stevens, changed the names and gone home early.

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And consider the decision's line-up! Justice Antonin Scalia (hardly a defender of free speech) writes for a majority that includes Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, with Samuel Alito writing a concurrence, while Chief Justice John Roberts, Clarence Thomas and Stephen Breyer file dissents!

Of course, as Justice Scalia's opinion makes clear from the start, California crafted Assembly Bill 1179  to sound as much like the high court's Miller test for obscenity as they possibly could, just mostly without the sexual aspect.

Therefore, describing games that include, in the "'range of options available to the player... killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted' in a manner that '[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,' that is 'patently offensive to prevailing standards in the community as to what is suitable for minors,' and that 'causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors,'" is verbiage all too familiar to defenders of sexual speech.

But when Scalia, one of the Court's strongest opponents of sexual speech rights, writes, "The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try," what are citizens to make of the fact that in every commercial sexual speech (obscenity) case that's ever come before him (or in most cases, been rejected by him and a Court majority without a hearing), that's exactly what Scalia has done: Somehow made that distinction?

Or how about, "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.  Under our Constitution, 'esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority'"? If one wants to communicate a "social message" the "esthetic and moral judgments" about whose content the individual, not the government, is supposed to make, that strikes Americans (and others) where they're most likely to get that message (hint: the groin), try porn!

And where's that last quote from? U.S. v. Playboy Entertainment Group, the cable TV "signal bleed" case!!!

Of course, Scalia gets the "historically unprotected" speech categories as wrong here as Chief Justice John Roberts did in the Stevens case, citing the same cases Roberts did and with as little reason or justification. Of course, sexual speech was never meant to be covered by the Founders in the First Amendment any more than incitement to riot, fighting words or defamation—and we know that because the Supreme Court says so! (But then there's Ciancanelli...)

Scalia doesn't want to add to those "historically unprotected" categories "without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription," but what about using modern societal evidence and peer-reviewed scientific research to reexamine the "historically unprotected" ones? Readers are welcome to search for an answer in the current decision; big prizes for those who find it.

They won't find it in Scalia's recognition that, "As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct'." Consider the implications of that statement: For Scalia, it doesn't matter how "shocking" some particular content is; that stuff's okay. But if it has any "depictions of sexual conduct," it's ripe for one of those "esthetic and moral judgments" that only the individual, not the government, is supposed to make!

But perhaps the casual reader of this opinion will think that minors can legally be "protected" from violence, much like several states have laws prohibiting disseminating even non-explicit sexual speech—for instance, simple nudity—as "harmful to minors"? Ennnhhhh! Wrong again!

"Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York," Scalia writes. "That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.  We held that the legislature could 'adjus[t] the definition of obscenity "to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests . . ." of . . . minors'." [Citations omitted here and below]

But according to the Court, that's not what California did. As the Court sees it, the state essentially tried to regulate "offensively violent works"—i.e., video game sales—not to adults, because Stevens prohibits that, but to children, under the same logic that allowed the Supremes to uphold Ginsburg—which is the Miller obscenity test but with the words "for minors" appended after every clause.

But no: "That is unprecedented and mistaken," Scalia analyzes, then quotes from Erznoznik v. City of Jacksonville, a case involving showing films containing nudity at a drive-in.

"[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them,” Scalia quotes, then continues,  "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.  'Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them'," again citing Erznoznik.

Indeed, it's easy to forget that this decision is supposed to be focused entirely on what minors can buy or see, considering how many hoops Scalia and the high court majority have to jump through, first to distinguish violent speech from sexual speech, and then violent speech for minors versus sexual speech for the same age group.

Hence, Scalia pads the opinion with a recitation of all the violent literature to which kids are exposed in grade school, from Grimm's Fairy Tales to The Odyssey of Homer to Dante's inferno to Lord of the Flies to this "blast from the past," EC comic books' "preoccupation with violence and horror."

"JUSTICE ALITO has done considerable independent research to identify video games in which 'the violence is astounding'," Scalia writes. "'Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.' JUSTICE ALITO recounts [in his concurrence] all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression."

Funny; when it comes to sexual speech, Scalia has always found "disgust" to be entirely "a valid basis for restricting expression"! 

"And the same is true of JUSTICE ALITO’s description of those video games he has discovered that have a racial or ethnic motive for their violence—'"ethnic cleansing" [of] ... African Americans, Latinos, or Jews'," Scalia continues. "To what end does he relate this?  Does it somehow increase the 'aggressiveness' that California wishes to suppress? Who knows?  But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription."

Talk about "irony": How fascinating is it that Scalia castigates Alito for the exact reasoning that Scalia himself applies to sexual speech!

Finally, Scalia deals with the question of whether AB 1179, in its attempt to regulate the content of speech, survives strict scrutiny, and he concludes it doesn't.

"The State must specifically identify an 'actual problem' in need of solving, and the curtailment of free speech must be actually necessary to the solution," he instructs. " That is a demanding standard.... California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors."

But wait; it gets better!

"The State’s evidence is not compelling," Scalia assesses. "California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children.  These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, '[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.' They show at best some correlation between exposure to violent entertainment and miniscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media."

So if simple correlation of violent media with violent acts (rather than researchers having found any causative factor in the media itself) is sufficient to strike down a speech-restrictive law targeting violence, what about the reams upon reams of peer-reviewed research showing that there is no causative connection between sexual media and, for instance, acts of rape or other sexual assaults? But of course, the high court doesn't have to answer that question because, of course, sexual material is "historically unprotected."

Of course, it was nice to see the state's expert witness agree that violent video games have "about the same ... effect" as watching Bugs Bunny cartoons.

As Scalia notes, California's lack of attempt to include Saturday morning cartoons, G-rated games and photos of guns in its prohibition easily renders the statute underinclusive, and ripe for rejection for unconstitutional vagueness—but wait; there's more!

"The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence," Scalia, a major fan of bullfighting, notes. "The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem."

Really? So all those claims of quack counselors and psychologists that "pornography addiction is real" shouldn't be a sufficient (or even contributory) reason to keep "obscene" sexual content off the store shelves and off websites? Good to know!

"The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games," Scalia reports. "The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults-only games to minors; and to rent or sell 'M' rated games to minors only with parental consent.... This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest."

Wow! So if adult retailers placed a rating on all of their sexually explicit products—say, "XXX"—that should be sufficient to alert adults not interested in seeing people fucking not to buy the product, wouldn't it? No need for government regulation there! In fact, Scalia essentially agrees!

"And finally, the Act’s purported aid to parental authority is vastly overinclusive," he recognizes. "Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to 'assisting parents' that restriction of First Amendment rights requires." [Emphasis in original]

So how is this different from the concept that the state/federal government deciding what adults "ought to want" in the way of adult entertainment being "not ... narrowly tailor[ed]" to a legitimate "restriction of First Amendment rights"? Sorry; we forgot: sexual speech is "historically unprotected."

"We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development," Scalia summarizes. "Our task is only to say whether or not such works constitute a 'well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem' (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not).  Even where the protection of children is the object, the constitutional limits on governmental action apply." [Emphasis added]

But if California can't pass such laws, how can the federal government do so by criminalizing interstate sales of certain sexually-explicit materials?

The concurrence and dissents to the decision are also somewhat interesting. Justice Alito thinks the high court should "proceed with caution" regarding "new and rapidly evolving technology," and "make every effort to understand" it, since it "may have important societal implications that will become apparent only with time." Fortunately, Supreme Court justices are rarely allowed to predict the future; that's for the legislatures, "who may be in a better position than we are to assess the implications of new technology." And Alito clearly thinks they should.

But even Alito's concurrence has sexual speech implications.

"Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited," Alito declares. "The lack of such notice in a law that regulates expression 'raises special First Amendment concerns because of its obvious chilling effect on free speech.' Vague laws force potential speakers to '"steer far wider of the unlawful zone" ... than if the boundaries of the forbidden areas were clearly marked.'"

We'd certainly defy any person "of ordinary intelligence" to figure out, by reading the state and federal "sexual speech" laws or the Supreme Court's obscenity decisions, what parts of sexual speech are given "fair notice" in those laws and/or decisions "of what is prohibited," thus causing such people to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked."

Of course, Alito notes that the California law specifically prohibits any game that allows a player to "kill[], maim[], dismember[], or sexually assault[] an image of a human being," but since the majority has ruled that that description is not sufficiently specific, how much more unconstitutional are laws that don't even attempt to define what sexual images or acts fall outside First Amendment protection? Nonetheless, he spends a lot of time distinguishing the instant case from Ginsberg.

"The California Legislature seems to have assumed that these [community] standards [regarding violence] are sufficiently well known so that a person of ordinary intelligence would have fair notice as to whether the kind and degree of violence in a particular game is enough to qualify the game as 'violent'," Alito claims. "And because the Miller test looks to community standards, the legislature may have thought that the use of undefined community standards in the violent video game law would not present vagueness problems. There is a critical difference, however, between obscenity laws and laws regulating violence in entertainment. By the time of this Court’s landmark obscenity cases in the 1960’s, obscenity had long been prohibited, and this experience had helped to shape certain generally accepted norms concerning expression related to sex."

Wow! That's exactly the type of "logic" we've come to expect from conservative Supreme Court justices: Because "obscenity had long been prohibited" by the 1960s, that widespread and long-standing violation of the First Amendment "had helped to shape certain generally accepted norms concerning expression related to sex"—because after all, citizens are too weak-brained to be able to make their own decisions about what material they'd like to buy and look at, especially since the Supreme Court has, for more than a century, prevented them from buying it and looking at it!

"Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite 'deviant' or 'morbid' impulses," Alito continues. "Finally, the difficulty of ascertaining the community standards incorporated into the California law is compounded by the legislature’s decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.""

So "reasonable people" can "disagree about which depictions may excite 'deviant' or 'morbid' impulses" about violent material, but not about sexual material? And where "community standards" can't be ascertained because the California law "lump[s] all minors together," it's nonetheless okay to convict makers and sellers of sexual material even if the entire community doesn't agree there's anything wrong with it?

Beyond that, Alito seems to have a problem with the fact that the games in question are "too realistic" in their killing, maiming, sexually assaulting, et cetera,  but that's largely a reiteration of his caution that the high court should watch new technology closely.

"When all of the 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," Alito concludes. "And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand."

Dissenting Justice Clarence Thomas, on the other hand, finds no constitutional problem with the law—a position that should be worrisome, considering that next term, the Court will take up the Fox Broadcasting v. FCC "fleeting expletive" case. And talk about "originalism": Thomas goes back to the pre-revolutionary writings of John Locke and Jean-Jacques Rousseau to support his views!

Justice Breyer, on the other hand, is willing to parse the law closely to affirm its constitutionality, saying early on in his dissent that, "I shall focus here upon an area within which I believe the State can legitimately apply its stat­ute, namely sales to minors under the age of 17 (the age cutoff used by the industry’s own ratings system), of highly realistic violent video games, which a reasonable game maker would know meet the Act’s criteria."

In other words, "everybody knows" what a violent video game is—just as back in 2008,  "everyone knew" that Michael Williams was advertising kiddie porn for sale over the internet—so what's the problem? And this from a justice who's commonly believed to be speech-friendly!

But after noting that the California law substitutes "deviant" for the words "prurient" and "shameful" used in the Miller v. California obscenity decision, Breyer concludes, "Both the Miller standard and the law upheld in Ginsberg lack perfect clarity. But that fact reflects the difficulty of the Court’s long search for words capable of protecting expression without depriving the State of a legitimate constitutional power to regulate. As is well known, at one point Justice Stewart thought he could do no better in defining obscenity than, 'I know it when I see it.' And Justice Douglas dissented from Miller’s standard, which he thought was still too vague. Ultimately, however, this Court accepted the 'community standards' tests used in Miller and Ginsberg. They reflect the fact that sometimes, even when a precise standard proves elusive, it is easy enough to identify instances that fall within a legitimate regulation. And they seek to draw a line, which, while favoring free expression, will nonetheless permit a legislature to find the words necessary to accomplish a legitimate constitutional objective."

Of course, we might ask where in the Constitution Justice Breyer finds the government's "legitimate constitutional power to regulate" violent (or sexual) speech, but silly us; we'd forgotten that such speech is "historically unprotected"—the "precise standard" of the Constitution be damned! Well, as long as he "knows it when he sees it" ...

What makes Breyer's dissent particularly galling is his extreme attempt to find a one-to-one relationship between obscenity law and the video game law at issue.

"After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence," Breyer correctly notes. "Indeed, sex 'has been a theme in art and literature throughout the ages.' For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva. Thus, I can find no meaningful vagueness-related dif­ferences between California’s law and the New York law upheld in Ginsberg. And if there remain any vagueness problems, the state courts can cure them through inter­pretation."

Yeah, who needs to worry about "vagueness" when you can have "interpretation," especially when it comes to expressive speech? No chance of going wrong there!

And where did that quote in Breyer's dissent come from? Ashcroft v. Free Speech Coalition, a pro-free speech case!

Both Thomas and Breyer spend some time arguing that video games are not only speech expressions, but also training materials for target practice, thus diminishing their protection as expression, but neither makes that argument central to their dissents; it's still all about sex, at least for Breyer.

"I add that the majority’s different conclusion creates a serious anomaly in First Amendment law," Breyer writes, without a trace of irony. "Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most vio­lent interactive video games. But 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 a 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?  What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?"

Um ... a First Amendment that, in its text, doesn't grant Congress (or the Supreme Court) the right to suppress any speech whatsoever? Oh, wait; that's not it...

"This anomaly is not compelled by the First Amendment," he continues. "It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity.  And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face."

Of course, no one has yet proven that photographs of nudity are harmful to children in any way—in fact, what evidence exists says exactly the opposite—but how sad that it's Justice Breyer who takes up the task of justifying the Supreme Court's century-plus violations of the First Amendment!

But who would have guessed that, "This case is ultimately less about censorship than it is about education," as Justice Breyer claims in his final paragraph. "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."

Shorter version: The government has to practice mind control on its youngest citizens—but of course, only mind control the kids' parents think is good for them, based on the parents', teachers' and legislators' religious or cultural prejudices—or else how can we "raise future generations committed cooperatively to mak­ing our system of government work"?

Because after all, the U.S. Constitution's protections for free speech don't really work in practice, do they?






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Mark Kernes

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