Court bans game bans
Free speech: one. Parents: zero.
I'm essentially a strict constructionist when it comes to the Constitution, and even more protective of the First Amendment. With the advancement of faux-reality TV, junk shows with no redeeming messages or displaying the most basic consideration for others, and increasing gratuitous violence in all broadcast media, I can't help but feel worried for society's future. Entertainment reflects our desires, markets to our demand; what this says about us can't be good.
So as mom, am I happy with ratings and limited sales to minors? You bet.
As lawyer-citizen, would I trade that security to prevent further stretching the U.S. Constitution's threadbare protections? Reluctantly if I must choose, yes.
So it seems feel Supremes. Seven of the justices on the U.S. Supreme Court on Monday shot down a banner state law restricting sales of video games to minors. Justices Breyer and Thomas dissented, although for different reasons. The California law fined anyone who sold a violent video game to a minor. Parents were still free to buy them.
The statute in Brown v. Entertainment Merchants Association (formerly the Video Software Dealers Association) defined violent as "a game in which the player has the option of killing, maiming, dismembering, or sexually assaulting an image of a human being" in a manner that is "offensive." Examples include Postal 2 and Grand Theft Auto: San Andreas.
We're not talking about war-themed games here. In some games, torturous murder and attempted rape (of passersby, for example) earn points for the player. Few parents want kids to buy such a game at all, let alone independently. Other states have tried to enact bans like California's (soon blocked by an appeals court from taking effect) limiting sales of the worst games to those over 18. As of June 27, those laws are likely unconstitutional.
Video games, like movies, plays, books, and newspapers, are entitled to the same free speech protections; the medium does not change the analysis. The basic principal is that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, no matter how vile it may seem. The slippery slope of censorship isn't worth it.
This is not to say that no restriction could be constitutional. The First Amendment's history of content-restricted "speech" (e.g., video) permits some limits, as long as they are "justified by a compelling government interest" and "narrowly drawn to serve that interest." Examples of permissible restrictions include bans on pornographic images of children.
The court did point out that psychological studies linking violent games to aggressive behavior or other damage have been inconclusive at best. Should those data change, that may affect the "compelling interest" element. Besides, with what seems like an unfettered path to encourage more extremities in so-called entertainment, I have little doubt that a game will come to meet the ban criteria.
What worries me more is that the American concept of "offensive" is continually eroding. Preferable to addressing that with further exceptions to the First Amendment is a reformation of social values, virtues, morality - a groundswell on a popular level, rather than legislation. It takes a little more self-discipline, but better discipline by self than by government.
The former lasts longer.
Sholeh Patrick is an attorney and a columnist for the Hagadone News Network. Email sholehjo@hotmail.com