Tuesday, June 28, 2011

Video Game Violence: What About The Parents?!

Being a huge proponent of freedom of speech AND a believer that videogames, television, advertising and films can negatively distort people’s perceptions of reality, you would think I would be torn about yesterday’s 7-2 decision by the Supreme Court striking down a law that prevents minors from buying violent videogames. But I’m not. The court got it wrong, pure and simple.

The issue before the Supreme Court was a California law that makes it illegal for retailers to sell violent videogames to minors. The law defines “violent” as games that depict the “killing, maiming, dismembering or sexually assaulting an image of a human being.” It carried fines up to a $1,000.

Writing for the majority, Justice Antonin Scalia struck down the law, saying that the First Amendment applies to “entertainment,” and thus, videogames are afforded the same degree of protection as books and movies. He conceded that states do have a legitimate interested in protecting children, but he held that “does not include a free-floating power to restrict the ideas to which children may be exposed.” And since “disgust is not a valid basis for restricting expression,” the law had to be struck down. Indeed, by way of comparison, he noted that television and children’s books throughout history have depicted violence:

“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.”
If we were talking about adults, then I would agree with the court. Free speech is one of our most vital freedoms. It is the way we determine which ideas have value and which don’t. It is how we test our beliefs. And our society is more than strong enough to allow idiots to present stupid, disgusting or wrong ideas without fear that our country will collapse.

But we’re not talking about adults, and that’s where the court went wrong.

The court should have upheld the law for one simple reason: children do not have freedom of speech rights. If they did, then public education would be virtually impossible as children would have a right to decide which ideas they wanted to be exposed to and which they didn’t. Similarly, parenting would become impossible whenever the state got involved, for example at a child custody hearing, as children would have all the rights of adults.

Justice Thomas made this point in his dissent where he noted that the First Amendment does not “include a right to speak to minors without going through the minors’ parents or guardians.” In other words, children's rights get exercised through their guardians, and the state is well within its rights to say that children may not engage in free speech, or commerce, or gun ownership or anything else without the approval of those guardians.

Putting this another way, the court’s question of whether disgust is a significant enough basis to restrict the child’s freedom of speech rights is a false premise because the child has no such rights in the first place. Liberal Justice Stephen Breyer (the other dissenter) backed this point when he noted that the state was not trying to bar the minor having such material, it only required the approval of a guardian:
“The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help.”
Breyer also made the less principled, but quite logical point that since the court still forbids children from buying pornography, the court has created an incredible hypocrisy here:
“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?”
The dissent is correct. This was a mistake.

And let me be clear, I’m not siding with the “what about the children” crowd. That’s sophist nonsense used to hide true motivations and is usually advanced by busybodies who want to rule over others lives. What I’m talking about here is respecting the right of parents/guardians to make decisions regarding their children. If this law had tried to ban children from being given such material, then I would have supported the court’s decision. But it didn’t. All it did instead was try to prevent retailers from circumventing the rights of guardians/parents to make decisions for their children. That is well within the constitution and no rights are violated by such a statute.

How can we legitimately tell parents that raising kids is their responsibility when we take away the state’s power to help parents enforce those decisions.


Mike K. said...

How does the now struck down law differ from theaters not allowing children into R-rated movies without an adult?

Tennessee Jed said...

Andrew - I must say that I agree with you 100% on this. SCOTUS got it wrong, and Thomas got it right, although Breyer gives a good example. The action word in all of this is "sale to minors." One could use other examples such as alcohol or firearms, but the principle, at least to me, is exactly the same.

rlaWTX said...

was the majority's entire argument on a free speech basis?

I like having a Roberts court instead of say a Wu court, but does it seem that they are going too far "right" or libertarian? I can't remember all of the recent decisions, but it seems like there have been several that make you go HUH?

AndrewPrice said...

Mike, That depends. If the theater action is the result of a law, then the court has simply created a contradiction -- as they have with pornography.

If the theaters do this on their own, then no government action is involved (i.e. no law) and thus the Court would say that no rights have been violated because the constitution only speaks to government action.

ALTHOUGH, using this decision, I would say that kids could sue theaters under the 14th Amendment for unequal treatment.

AndrewPrice said...

Thanks Jed! That's my point exactly. And the key to me is that this isn't a busybody legislature trying to ban kids from ever getting this stuff, it just says that kids must get the approval of their guardians before they can get it. We have similar rules in a million other areas. So this was an intellectual mistake by the court, and I think this really runs counter to the way we want parents to take responsibility for their kids. How can they do that if the kids can go out and buy the things directly that the parents don't want them having?

AndrewPrice said...

rlaWTX, I absolutely prefer a Roberts court to a Wu court! But I think they've made a handful of some strange decision in the past few years. Not moreso than other courts, but still strange.

I think what they ultimately fell for (reading between the lines) was that evidence was presented that there is no scientifically proven link between video game violence and aggressive behavior. So they decided that this was a needless ban.

BUT that's not the court's job. The court's job is not to act like a legislature and consider all the pros and cons, it's job is just to rule upon the law. In this case, I think they decided this was needless, so they fell back on the idea of Free Speech.

The long term problems with this kind of ruling is that it creates another lump in Free Speech law that is inconsistent with the rest. Kids could use this to challenge laws keeping them from buying cigarettes or pornography and the court will either need to recant this decision or start splitting hairs. And when you start splitting hairs, you just create more problems and more challenges.

Thomas is 100% right on the law and they should have realized that.

BevfromNYC said...

That is exactly what I was arguing about yesterday. Parent should be have dominion over their children.
What happened to that liberal morality that proclaimed that "It Takes a Village"?
It used to be that communities set the moral and ethical values through the churches and "The Village" helped protect children without government intervention. It was a cooperative effort. Now it just seems that "The State" does everything it can to interject itself between parent and child, making it much harder for parents to protect their own children.

CrispyRice said...

I was thinking exactly what Mike Kriskey was thinking! We bar kids (with good reason) from R and NC-17 movies. If parents want their kids to have those video games, they'll buy them.

Besides, what the heck is so wrong with saying that childhood is something that deserves to be protected and sheltered? Kids don't need to know everything adults know. Even as a libertarian, there's a good for society in keeping certain things "secret" from children for awhile. Grrrr.

CrispyRice said...

Btw, if you're looking for a decent book on this, check out _The Disappearance of Childhood_ by Neil Postman. It's a bit old, but very compelling reading.

Unknown said...

Andrew: I'm with you, and my favorite justice, Clarence Thomas. We've gone way too far in treating children as if they were adults with adult rights. They do have rights-to protection, occasionally even from their own parents. But to treat children as small adults is nonsense, even in today's childish society. The Founders certainly knew that, but it seemed so obvious that they didn't put it into the Constitution. The underlying concept of the California law was to regulate non-parental adults who would harm children, not to restrict the rights of the children themselves (or their parents, for that matter).

Cheryl said...

"...this really runs counter to the way we want parents to take responsibility for their kids. How can they do that if the kids can go out and buy the things directly that the parents don't want them having?"

Exactly! I raised three boys. And although I tried to be a diligent and involved mother, I am now finding out, with each family gathering, new tales (recounted with hysterical laughter, as I sit in horror wondering how any of them ever survived adolescence) of their shenanigans that went on behind my back.

We have an obligation as a society to protect our children from themselves. They're gonna do stupid stuff.

And I agree with you that these games are NOT harmless. How can any thinking person conclude that acting out the vile, depraved behaviors in these games will not have an impact on young minds?

I feel the same stomach-sickening feeling regarding the content of these videos as I did yesterday when considering the treatment of women in terrorist organizations. Barbaric! And our kids have a "right" to participate in it?

BevfromNYC said...

Actually there are scientific studies that show that videogames can effect the brains of children and can cause permanent changes to brain function. It is not the violent videogames per se, but videogames in general. Children can be overstimulated as much as they can be understimulated.

But as to violent images for children. I say this over and over to those who swear that children know the difference between fake and real violence and it can't effect them. Why is it that we think that we cannot be effected by constant assault of fake violence when we all can cry at the drop of hat at those overly sentimental Hallmark commercials? It effects us. Ever wonder why children are being medicated at an alarming rate these days for ADD and ADHD? Little brains cannot process a constant onslaught of visual images without getting agitated.

AndrewPrice said...

Bev, I couldn't agree more. Whether you believe it takes a village or that the whole child raising thing is on parents, neither system can work when the state takes away the ability of the community/state/parents to enforce the decision of parents.

This is one of those strange decisions that I'm sure sounded good to them in chambers.... "gee, it's pure free speech," but it's nonsense the moment you think about it. And the fact that 3 conservatives and 2 liberals fell for it is rather shocking.

I think they will regret this decision once they find it quoted back to them as the ACLU start challenging other limitations put on kids "freedoms," like keeping them from buying pornography or cigarettes.

In fact, the only way to square those decisions would be to say that only bans of "harmful" things can stand. But that puts the court in the place of the legislature as it decides what is harmful. That is not the role of the court and never has been. It's job is to look at the legality of the law, not the wisdom.

AndrewPrice said...

Crispy, And I think you and Mike make good points. There are many things we don't let kids get their hands on at all and many things we don't let them get without parental supervision. Pornography is one of those. So what's the difference?

There really isn't one. In fact, Breyer noted this irony when he said that "so you can't buy a dirty magazine, but you can buy a videogame where you sexually assault and murder the same woman?" That shows the very twisted result of this case.

We don't trust kids to make all their own decisions for a very good reason. And the law has always recognized that they don't have full-on adult rights. Their rights need to be gotten through a parent or guardian. This decision just flies in the face of that.

AndrewPrice said...

Crispy, I've heard good things about the Postman book and I like his concept. I understand that childhood wasn't always the same, but that doesn't mean it's not a good thing to let kids grow up without the pressures of adults until they are a little older. This decision is just another in a long list of actions by our government (and our culture) that seek to push the adult world onto kids (or let it intrude).

wahsatchmo said...

I was just discussing this case with one of my co-workers yesterday, and we both couldn't quite understand how this was a free speech issue. I think that one reason Scalia came down on the side of the majority was because the video game industry does a fairly decent job of self-policing with their ratings system, and most retailers seem to enforce the ratings by restricting sales as a matter of policy.

But California certainly has a right to codify this into law, just like restricting the sale of anything else to a minor. Strange bedfellows on this one.

AndrewPrice said...

Lawhawk, Thomas just continues to impress me with his ability to cut through the misguided theoretical discussions and cut to the quick. He's absolutely right on this and they should have listened to him. Sadly, they all went down the wrong path and now we have this decision, which will result in future legal chaos until it gets explained away.

AndrewPrice said...

Cheryl, I don't believe for a minute that these games are harmless. I think we've seen the evidence of that all around us in a dozen ways. Maybe kids don't immediately run out and start chopping people to bits, but it's still got a clear negative effect on the value people place on each other and how they seek to resolve conflicts.

And you are absolutely right about kids doing stupid things. We did so many stupid things growing up that I'm surprised too that we lived. Our parents did their best, but we still found ways. But there were always limits on what we could do because other adults weren't going to "enable" us by selling us things we shouldn't have. In other words, if we were going to do something stupid, we did it on our own -- without help from society.

This case changes that. We'll see how far this ruling gets extended, but at least so far as videogame go, this ruling makes it possible for retails to now aid kids in their quest to do stupid things their parents might not have wanted them to do. This just doesn't make any sense.

And again, I'm not saying that I want to ban these games or make sure that no kid ever gets them, but I want parents to have the say in whether the kids get them.

AndrewPrice said...

Bev, Excellent points. It's illogical to think that films/games can affect us in a positive way, but then think that they can't affect us in a negative way. It's also silly to think that children are as mature as adults when it comes to handling these issues. Children just aren't capable of separating real from fantasy as well as adults, and even many adults aren't good at it.

In terms of the studies, you are correct that there are studies. In this case, however, the state's expert apparently was unconvincing as the court noted the expert's testimony and then said that there is no scientific proof of a connection between videogames and violence. So it's a failure by the state to present good enough evidence.

BUT, again, the court shouldn't even have gotten to the question of evidence. This is a pure legal issue and the Court should have recognized that children have no such rights in the first place. Thus, there is no right to be violated and it doesn't matter if the state presented good, bad or even no evidence. That's a question for the legislature, not the court.

Ed said...

Andrew, What you and Thomas say makes total sense to me. I think there is a huge difference between banning something entirely and requiring minors to get the consent of their parents. I'm surprised the court didn't see that.

AndrewPrice said...

wahsatchmo, Strange bedfellows indeed. And that often indicates something more is going on than you see in the decision. So it's possible that the reasoning they gave isn't really the reason that won the case. But it doesn't matter because the written decision is what become law, not the reason for it.

Unfortunately, because of this decision, California no longer has the right to codify this -- and other states don't either.

The next big question will be, how will this ruling ultimately be applied? Will it be read to knock down other restrictions or will it stand on its own and be narrowly read? We just don't know yet. But one thing we do know, this decision has the potential to cause a lot of chaos.

Consider the voluntary restrictions, for example. If it's no longer legal for the state to impose such a limit as a matter of law, then the threat of potential legal action which has gotten voluntary compliance will come to an end and the voluntary system too may go away because there's no longer any reason to fear that the state might step in if game makers don't regulate themselves.

AndrewPrice said...

Ed, I think that's true as well. I don't like the idea of the state telling people what they can or cannot due, but there is nothing wrong with requiring kids to obtain their parent's permission before buying something.

USS Ben USN (Ret) said...

I'm actually surprised that Breyer makes sense for once.
And Judge Thomas was right on. This is bizarre.

Does this mean that the video game industry (and/or companies that make video games) can stop putting ratings on their games?

I'm sure most will stick with the voluntary system because it's good business, but I wouldn't be surprised if some companies decide to stop using it to make a quick buck.

On how it affects the minds and developement of children:
I know some idiots (who think liberty should equal "doing whatever they want," including children) will use the strawman of the Three Stooges or Looney Tunes arguement to justify this decision, but there's a clear difference between cartoon and clearly fake violence and realistic, serious violence.

I mean, when I was a boy, I didn't know any kids that believed the Three Stooges were really hurting each other with hammers, saws, eye pokes, etc., or couldn't tell the difference between the Coyote and Roadrunner and reality.

But now there's very realistic video games and mnovies that ain't funny or cartoonish at all.
Which would make it much more difficult for children to know the difference.

And the sadism and psychopathic nature of some of the worst video games may very well contribute to children becoming more sociopathic and less empathic.

This will make the job of parents much more difficult!

AndrewPrice said...

Ben, It is weird when a liberal justice makes sense, but it can happen.

In terms of what this means for the voluntary system, it means it truly is voluntary. This means that the states don’t have the power to impose any restrictions. So the videogame industry is free to do as it wishes without having to fear that the state will impose such a system on them if they do the wrong thing. Will they abandon the system? I doubt they will all abandon it because it is good business. But some will.

You’re right about the difference between Looney Tune violence/Three Stooges and this. Looney Tune and Three Stooges violence is done to be “cartoony,” i.e. blatantly not real. The videogames they are talking about are designed to be as realistic as possible. That’s a significant difference. And I think your use of the word “sadism” is an accurate one. These aren’t just killings, they are as horrific as possible. So there is a difference. And I think parents should have the right to make up their minds whether kids should be able to get access to this. This ruling flies in the face of that.

Let me add too, that people who have complained about cartoon violence have done this issue a disservice by failing to complain only about things there are truly important. That makes it harder for people to distinguish what is truly harmful and what isn’t. In other words, if you’re complaining about a cartoon rabbit hitting a cartoon duck with a frying pan, then no one will take you seriously when something more significant (like this) comes about.

Ed said...

Andrew, I think the responsible companies will keep the voluntary system, but I can definitely see the guys looking for a one-time quick hit (and there are a lot of those in gaming) skip the system. Although, I don't see a WalMart giving up the voluntary labeling system.

AndrewPrice said...

Ed, That's probably correct.

DUQ said...

I agree completely. This was a stupid decision and Thomas had it right. If we start treating kids like adults, then we are in for some serious problems.

AndrewPrice said...

DUQ, It would present serious problems for society if we start treating kids like adults. I don't think this decision goes that far, but it's premised on that kind of idea.

Notawonk said...

it was mind-boggling to me when i read the decision, but in our house, as husband and i used to say to our kiddo, our rules. no violent video games for you! wrong side of the law?! deal with it, kid.

AndrewPrice said...

Patti, I certainly think most parents can deal with this, but I'm just stunned the Supreme Court would come up with this decision? There's no legal or logical basis for this and yet 7 Justices bought into this?

DUQ said...

Andrew, Can you explain how far this decision can go?

AndrewPrice said...

DUQ, It really depends. People who want to strike down restrictions on children will cite this in each of their attempts. The court will either continue to follow it, ignore it, or narrow it by trying to explain it away or making it apply only to a very narrow set of circumstances. You just can't tell until you see how the Supremes treat it the next time. One thing is for sure though, it will be used a lot in the lower courts -- but they are relying on it at their own risk that the Supremes will ultimately limit the decision.

I hope that makes sense?

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