Game over for childhood? Violent video games as First Amendment speech.

• Author: Schlafly, Andrew L.

Are violent video games protected under the First Amendment right to free speech? The U.S. Supreme Court addressed this issue for the first time during the October 2010 term. (1) In Brown v. Entertainment Merchants Association, the Court held that video games constituted protected First Amendment speech, no matter how violent, and that such games could forever be sold without limitation to children. (2) This decision boosted a highly profitable industry that has already surpassed Hollywood in revenue and influence, producing annual revenues of over sixty-five billion dollars. (3) It is increasingly common for students to drop out of college simply because of video game addiction; (4) millions of people spend an average of forty-five hours per week playing these games. (5) This immense waste of time is not the only problem.

Studies describe harmful effects ranging from health problems to violent behavior. (6) Rewarding points to mentally unstable 13-year-olds in exceedingly violent games, as the children decapitate and perform other gruesome tasks, may be a recipe for otherwise unexplainable outbursts of real violence. In fact, at least one study has shown that many young mass murderers were hooked on violent video games before they committed the actual act. (7)

California, not known for conservative legislation, enacted California Assembly Bill 1179 in 2005 to protect children against exploitation by violent video games, (8) similar to the current protections afforded to children against the direct sale of alcohol, cigarettes, gambling, pornography, and other adult vices. (9) Specifically, the California statute provided that "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor." (10) While the penalty for violating this law was set at a maximum of $1,000, (11) no one was ever fined a dime.

This law struck at the heart of the video game industry because the more violent the games are, the more money the industry makes. (12) Telling the video game industry to curb its violence is like telling the pornography industry to tone down its sex. In response to the legislation, a trade association promptly sued to block enforcement of the California statute, and both the district and appellate courts found the law to be unconstitutional. (13) At issue was whether the First Amendment prevents state legislatures from protecting children against exploitation by increasingly violent images and role-playing games. (14) The Court of Appeals for the Ninth Circuit invalidated the statute on the grounds that the First Amendment fully protects the sale of disturbing and violent video games to children. (15)

Despite a lack of conflict among the circuit courts, the U.S. Supreme Court surprisingly granted certiorari, presumably due to the growing importance of this issue. (16) The Court held the petition for certiorari for months while it decided another free speech case--United States v. Stevens--which concerned a related issue of whether laws could limit the distribution of videos featuring the torture of animals. (17) Such videos, known as "crush videos," display intensely degrading instances of real-life, violent abuse of animals. (18) By an overwhelming 8-to-1 margin, the Court applied the First Amendment to invalidate a federal statute that broadly prohibited the sale of videos displaying the illegal killing, maiming, torturing, or wounding of animals. (19) Within a week the Court then granted certiorari in the violent video game case, Brown v. Entertainment Merchants Association, (20) which was the Court's most time-consuming decision during the October 2010 Term. (21)

Justice Scalia needed three votes from the liberal side of the Court's bench to prevail by a 5-4 margin on the fundamental issue of whether States may regulate the sale of violent video games to children. (22) He patched together an unlikely coalition of Republican-appointed Justice Kennedy with Democratic-appointed Justices Ginsburg, Sotomayor, and Kagan, to hold that there is a First Amendment right to sell these games directly to children. (23) Justices Thomas, (24) Breyer, (25) and Alito, joined by Chief Justice Roberts, (26) all disagreed with Justice Scalia on the basic issue, though Justice Alito and Chief Justice Roberts agreed that the California statute was invalid. (27)

Much publicity greeted the verdict, which tied the hands of the people to limit the video game violence sold to children. Democratic State Senator Leland Yee of California, who had sponsored the statute and filed an amicus brief, said this:

Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children.... As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids' mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children. (28)

Senator Lee is correct about the result, but wrong about the reasoning. It was legal philosophy, not corporate interests, which resulted in the ruling in favor of the video game industry. Justice Scalia's opinion reflected his trademark view that the "Rule of Law" (29) should govern without regard to underlying values at stake. This approach has been his signature legal philosophy for his nearly three decades on the Court, despite finding little support among the next generation of legal conservatives and liberals. Justice Scalia prefers bright-line rules, (30) and here that meant protecting all such games without wading into the thicket of deciding what is too violent or too offensive to remain within the First Amendment. There is no mystery about why Justice Scalia held as he did, or why Justice Kennedy--who has long been a supporter of very broad free speech rights--agreed. (31) What remains a mystery is why three Justices on the liberal side of the Court joined this bandwagon, despite their disagreement with Justices Scalia's legal philosophy.

1. BACKGROUND: UNIQUELY HARMFUL CHARACTERISTICS OF VIDEO GAMES

   "Parents should know that every time they buy their child a [video] game, there is the potential for an epileptic fit," one mother stated after a tragic incident. (32) The same is not true for a book or other familiar types of speech. In addition to potentially harmful physical effects, video games are different from other forms of speech in these essential respects:

   * Most parents cannot review a video game's suitability for children because game-playing skills are required to view images at different levels.

   * Video games reward role-playing activities, e.g., some games reward players with more points by killing more people. (33)

   * Some video games have hidden embedded content unknown even to reviewers, whereby a certain object or sequence (e.g., an Easter egg) (34) is a secret gateway to images unsuitable for children. (35)

   * Unlike books and even movies, video games are highly addictive, causing children to spend a growing number of hours each year playing, much to their own detriment. (36)

   * Unlike many other forms of speech, violent video games desensitize people to killing, (37) and are even used by the military to train soldiers to overcome their reluctance to kill on the battlefield. (38)

   * Unlike most speech, playing video games entails conduct much akin to gambling. (39)

   Shocking crimes by teenagers have been linked to violent video games, the most notorious example being the Columbine massacre of April 1999, in which the young killers were obsessed with the game "Doom." (40) Other examples of video games linked to violent crimes include shootings in Jonesboro, Arkansas (March 1998); Springfield, Oregon (May 1998); Santee, California (March 2001); Wellsboro, Pennsylvania (June 2003); and Red Lion, Pennsylvania (April 2003). (41) Furthermore, there was the killing spree that paralyzed the D.C. area with sniper shootings in the fall of 2002. That, too, was associated with violent video games. (42)

   In December 1997, 14-year-old Michael Carneal walked into a prayer group in Paducah, Kentucky, and began shooting defenseless teenagers with a stolen gun. (43) There were several telltale signs that this massacre was incited by a violent video game. For example, Carneal never moved his feet during his shootings, and never fired far to the left or right; instead, he fired only once at each target that appeared, just as a player of video games maximizes his game score by shooting only once at each victim, in order to quickly hit as many targets as possible. (44) The killer's "tally" for his eight shots was three dead and one paralyzed, all struck in the head or upper torso by a 14-year-old who, "[p]rior to stealing the gun, he had never shot a real handgun in his life." (45) In contrast, "the average experienced law enforcement officer, in the average shootout, at an average range of seven yards, hits with approximately one bullet in five." (46)

   Many legislators of all political stripes have agreed that youth should not be left defenseless against the predatory, billion-dollar video game industry, (47) which chums out increasingly graphic blood and gore for impressionable minds to imbibe. A calamitous 30% of our nation's youth fail to graduate from public high school, and only 32% of those who attend public high school are ever qualified to attend a four-year college. (48) Many in both groups are hooked on these disturbing video games, spending many hours each week playing them, and perhaps spending many more hours disturbed by them. Legislators across the country took it upon themselves to help curb the exploitation of children by these games. (49) California's legislation was the first to reach the U.S. Supreme Court. (50)

2. ORAL ARGUMENT--BRIGHT-LINE RULES WITHOUT VALUES?

   At oral argument the video game...