Over the last five years or so, numerous state legislatures have passed laws banning the sale of violent video games to minors. In every case, the law was stricken down as unconstitutional under the First Amendment. Seemingly undeterred by such minor facts as judicial unanimity about the constitutionality of such legislation, California too passed a law banning the sale of violent video games to anyone under the age of 18. It used words such as “cruel” and “depraved” to define what was “violent.” And just like every court of appeal that had considered similar laws from other states, the Ninth Circuit Court of Appeal struck down California’s law without hesitation.
But on April 26, 2010, the U.S. Supreme Court granted review. The Supreme Court’s action has caused a furor because the Supreme Court usually does not review cases where the already-existing appellate case law has been entirely consistent across all jurisdictions. It usually only reviews cases where there is a split among the appellate courts. Here, there is no split. Which raises the obvious question — why does the Supreme Court want to review the California law?
My theory — and it is only that — is that the Supreme Court wants to tell all state legislatures to stop wasting everyone’s time (and taxpayer money) passing laws that are so clearly unconstitutional. I find it virtually impossible to believe that the Supreme Court might actually uphold the law for the simple reason that it would call into question this country’s entire understanding of what the First Amendment means.
Quite simply, the line between a violent video game and other forms of art, media and literature that we allow our kids to read or watch or perform every day is nonexistent. And if violent video games can be banned, then books, plays, television shows, movies, graphic novels and any number of other forms of expression that are commonly sold to minors could also be banned. I challenge anyone to explain the difference between the violence in video games and the violence in other forms of media.
We can start with books — and if you’re still waiting to get around to reading Harry Potter orLord of the Rings, you may want to skip to the next paragraph, but really, isn’t there a statute of limitation on spoilers? Anyhow. Harry Potter is very violent and the violence that is perpetrated by the villains in that book is often cruel and depraved. Harry Potter’s mother is ruthlessly cut down while attempting to protect the newborn Harry Potter. Then Lord Voldemort turns his wand on the baby himself. Lord Voldemort’s minions torture the parents of Neville Longbottom so cruelly that it drives them insane. Or consider Lord of the Rings. The violence perpetrated by the villains in that series of books is intense, often horribly cruel and genocidal in scope.
What is the distinction between books and video games? Most people who defend the law point to the fact that these books are (mostly) neither visual nor “interactive.” But, once again, the everyday forms of violent media that are sold to minors include a myriad of examples of visual and interactive works. Comic books and graphic novels can be extremely violent. The graphic novel 300, upon which the motion picture of the same name was based, is as bloody as they come. Red is the color of choice on almost every page of the book, whose very logo (as well as that of the 300 film) is written in blood. Does the First Amendment allow laws banning the sale of violent graphic novels to minors?
What about plays? They are, by definition, “interactive” — indeed, much more so than video games. An actor is not simply holding a controller in his or her hand. The actor is trying to convince the audience that he is truly the character being portrayed in all respects.
Would the First Amendment allow us to ban anyone under the age of 18 from playing the role of Brutus in Julius Caesar? Death by stabbing is notoriously bloody, as Shakespeare goes to some length to exploit. Each of the conspirators stabs Caesar in turn. And when they are done, Brutus tells them: “Romans, stoop, And let us bathe our hands in Caesar’s blood Up to the elbows, and besmear our swords.” Very bloody indeed. And even the most realistically violent video game systems I’m aware of don’t actually leave their players’ arms coated in simulated blood (though one can scarcely fathom the sales figures — and public outcry — that such a system would generate).
Most obviously, movies and television are often very violent, but also very literary or educational at the same time. The example I always think of is Schindler’s List. The entire point of the story is to show how Oskar Schindler was able to save a few thousand Jews from otherwise certain death. But in order to tell that story on the screen, Steven Spielberg felt it necessary to show what was happening to those Jews that Schindler was not able to save (and in the halcyon pre-Nipplegate days of 1997, before any of us had ever heard the term “wardrobe malfunction,” NBC agreed, broadcasting an unedited version of the film — nudity, violence, and full-throated parental warnings and all — in primetime). The depravity and cruelty displayed by the camp commandant in that movie is painful to watch. So painful that many adult moviegoers turn away unable to watch. Yet, there is no law on the books in this country that prohibits the sale of that movie to minors (the MPAA rating system is purely private). If a 15 or 16 or 17 year old student who is studying the Holocaust or who simply wishes to understand what happened wishes to buy that movie, I believe the First Amendment protects his or her right to do so. If we start banning the sale of such works to minors, I do not see where it ends.
The proponents of the California video game law will (probably) never argue that Julius Caesaror Harry Potter or Schindler’s List should be banned. They point to something in the video games that “lacks artistic merit.” But that slope is slipperier still. Who gets to decide what has artistic merit? Me? Not if you want to keep your precious Jane Austen. The government? I hope not. That is what the First Amendment was designed to prohibit. As history shows, the majority invokes “lack of artistic merit” as an ersatz “lack of political merit” to ban all dissent from the public forum (and no one will notice because the performance of plays like Julius Caesar, which tells that history, will be banned).
These points are so obvious as to be already part of the consciousness of almost all Americans. We do not even stop to consider that Harry Potter and Julius Caesar could be banned because we take it for granted that they cannot. Video games are different, not because there is any relevant distinction between them and other works that are obviously protected by the First Amendment. Rather, they are different only because they are new. Their newness makes them shocking to many people when seen for the first time. But when one simply considers that a video game is nothing more than an electronic play brought to life on a television screen, it becomes impossible to distinguish it from the other forms of media that we allows to be sold to “minors” every day.
Private people (parents, stores, theaters, etc.) have the right to “ban” these games from minors, but the government does not. If the government could pass a law banning the sale of these games to minors, then it could ban the sale of anything to minors. Such laws would fundamentally transform what it means to be a citizen of the United States. I doubt seriously that the Supreme Court will do that, especially when every court of appeal in the country that has previously considered the issue has held that the First Amendment does not permit such laws.