Supreme Video Violence Issue

  

The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

You can plainly see the rights protected by the 1st Amendment. One of theses rights implied is the freedom of expression. People relate the freedom of expression to the freedom of religion and the freedom of the press. The word expression, however, is not used in the First Amendment at all. Expression, to many, has come to mean freedoms that are explicitly protected: speech, petition, and assembly. What about expression in other forms -- electronic and artistic forms such as film, music, and video games?  

A video game released to almost everyone's condemnation titled JFK Reloaded was released in 2004. The player puts a finger on the trigger of Oswald's rifle, peers down the telescope, lines up the president in the cross hairs, and fires three bullets. The game's ostensible purpose is simply to re-kill Kennedy as accurately as possible. 

Also released in 2004, the enormously popular Grand Theft Auto: San Andreas is a 3D game in which the hero vows to avenge his mother's murder and restore glory to his neighborhood gang. Players rack up points by gunning down police, committing car-jackings, burglarizing homes and dealing in other underworld activities. The game is part of a series of Grand Theft Auto games. First introduced on PlayStation 2, the game has since been ported to the Xbox and Microsoft Windows to high sales figures, and it is reported to be the third best-selling game of all time.

But, Postal 2. a game from 2003, may capture the top violent slot. This is a game in which it is not uncommon to drop-kick grenades and whip scythes at unsuspecting civilians if they refuse to participate in your everyday life story (which is, after all, the plot behind the game). Of course, this includes using cat carcasses as silencers on your gun, hitting people with anthrax-laden cow heads and playing “fetch” with dogs using the severed heads of your dismembered victims. 

The $10.5 billion video game industry faces its greatest threat yet. On Tuesday, the court's nine justices will consider whether to strip First Amendment protection from violent video games that critics say appeal to the deviant interests of children.

As early as 2005, California law prohibited selling or renting these violent video games to minors. Their court found  the games stimulate aggressive feelings, reduce activity in the frontal lobes of the brain, and promote "violent antisocial or aggressive behavior." The author of the law is Senator Leland Yee, a child psychologist who claims video games are so bad because they are interactive."When you push a button, you literally are hurting, killing maiming another human being" in the virtual space," said Yee

The law never took effect because lower courts found it violated free-expression rights. In 2009, a federal appeals court in San Francisco said the the state provided no credible research showing that playing violent video games harmed minors and found the law was an unconstitutional effort "to control a minor's thoughts." (Jess Bravin, "Videogames as Free Speech Issue," The Wall Street Journal, November 1 2010)

   

Video game defenders say millions of children and adults enjoy video games every day, and the vast majority of them do not become criminals; and that no correlation has ever been shown between the rise of video game popularity and crime statistics. They also note that using a video game controller's or a mouse's buttons to shoot an opponent on a screen is a far different experience than shooting a man with a gun in the real world. 

And, since 2001, the Supreme Court has stood by as federal judges have tossed out video game restrictions in other states. 

Though some studies have purported to show  a cor-relational link, the vast majority have been unsuccessful in establishing causation. WordIQ.com ("Video Game Controversy - Definition, 2010)  Some studies explicitly deny that such a connection exists,  Ander Anderson and Ford (1986), Winkel et al (1987), Scott (1995).  

In taking the California appeal, the justices show now they are willing to consider new limits on free speech as far as computers and violence.

The Issue

The issue at hand is how much the law can stifle an art form, so lots of other media industries are also worried  that a broad ruling might be an indication the Court would be in favor of restricting their content as well. Since government doesn't regulate movies or music for violent content, game developers feel as if they are being singled out.

Jess Bravin reported that a ratings system, put in place by the videogame industry, already exists that is supposed to keep violent games out of the hands of children. In fact, the Federal Trade Commission reported in 2009 that video games had a stronger regulatory code than the movie or music industries, and that retailers regularly enforced age restrictions which limit games rater M (for mature) to consumers age 17 and older. ("Videogames as Free Speech Issue," The Wall Street Journal, November 1 2010)

According to the Federal Trade Commission, 20 percent of minors were able to buy M-rated games, down from 42 percent three years earlier.

In contrast, 72 percent of minors were able buy music CDs with explicit content warnings, 50 percent were sold R-rated and unrated DVDs and 28 percent purchased tickets to R-rated movies. The FTC noted there were gaps in enforcement of age-based sales restrictions, specifically with the use of gift cards in online purchases and unrestricted mobile games. (Derrick J. Lang, "Supreme Court To Hear Violent Video Game Case," MSNBC, October 31 2010)

Still, California claims that the voluntary system isn't good enough, because some minors manage to purchase M-rated games anyway, and some publishers don't submit games to the ratings board. If the California law is upheld, game makers fear a surge of other states and cities would use restrictions on games. This could lead to major retailers dropping titles of games with restricted labels. The game makers are comparing this to the movie business because most movie theaters won't run films rated X or NC-17.

Is the Court Changing?

In recent years the Supreme Court has been taking a more paternalistic view toward youth. For example, in 2007, the Court approved punishing a high school student for hoisting a banner that allegedly made light of smoking marijuana, finding antidrug policies outweighed student free-speech rights.

 

After a scathing commission report that found industry executives aggressively and routinely target adult-rated material at children, lawmakers have already asked the FTC to examine whether the agency could use its authority to take action against movie house, video game makers, and music producers that market inappropriate products to underage audiences. 

The FTC said there could be lots of problems with doing that. For example, to prove deceptive marketing of an R-rated movie under one legal theory, the FTC said it would have to show that advertising or other promotional material indicated the film was appropriate for audiences under age 17. At the same time, the agency said, it would also have to show that the film was in fact not suitable for audiences under age 17.

 

While many R-rated movies are inappropriate for younger viewers because of violent or graphic content, parents may not have objections to their children seeing certain R-rated films.

"People might have different views about the propriety of unaccompanied children under 17 seeing a film like Saving Private Ryan versus one like I Know What You Did Last Summer, " the commission wrote. ("FTC to Congress: First Amendment Would Limit Media-violence Crackdown," freedomforum.org, November 11 2000)

The commission also said it might also have a hard time demonstrating that a marketing practice of an entertainment company causes substantial injury to consumers and is therefore unfair. The FTC concluded the industry should bolster its efforts at self-regulation. Entertainment executives have said they are taking steps in this direction already, but some critics still think that the industry is not doing enough..

Paul K. McMasters, a First Amendment Center ombudsman, argues that the video game industry's rating system is already in place as a guide.Vendors are supposed to require proof of age before selling M-rated games to anyone under 17. According to McMasters, some of the largest retailers don’t even carry adult-only games. And, "according to an industry survey, the average age of a video-game player is 30 and the average age of a buyer is 36. When the buyer is a minor, parents are involved in the purchase 83% of the time." (Paul McMasters, "A More Mature Approach to Video-game Violence," First Amendment Center, February 20 2005)

McMasters believes politicians and activists might focus more of their energy on public-awareness campaigns, the independent rating system, and encouraging vendors to “card” more unaccompanied minors. He said that would be a much better way to go, not only because it’s First Amendment-friendly but also because it works.