Grand Theft First Amendment

Will the Supreme Court limit the sale of violent video games to children?

Are violent video games harmful enough that kids need the government’s protection from them? That’s the question at the heart of Tuesday’s Supreme Court argument in Schwarzenegger v. Entertainment Merchants Association, which pits the state of California against the group that represents video game manufacturers. California wants to ban the sale or rental of violent video games to kids under the age of 18. The state’s definition of violent is fairly precise—these are games in which players kill, maim, dismember, or sexually assault a human avatar. The trickier issue is, how bad is it for kids to spew this kind of blood and gore across the screen?

It’s a question over which psychologists and judges have split. The position of the medical establishment, represented by the American Psychological Association and the American Academy of Pediatrics, is that “scientific research on violent video games clearly shows that such games are causally related to later aggressive behavior in children and adolescents.” (See the appendix to this brief.) As Amanda Schaffer explained in Slate, three kinds of studies link violent video games to childhood aggression. Studies that track kids over short and long periods of time, and those that randomly assign kids to play violent and nonviolent games all point to more aggressive behavior and less helpfulness. A 2010 meta-analysis of more than 130 studies, by a group of authors including Anderson, who is a psychology professor at Iowa State, found that overall, the research shows that violent games increase the risk that kids will act out aggressively in real life situations over time.

Still, the studies can’t prove for sure that violent video games make kids more aggressive. Maybe the kids who are more aggressive are drawn more to these games. And maybe the lab-based experiments in which kids blast each other don’t have much to do with real-world fighting. The longitudinal results are probably the most convincing: Whatever their reasons for playing violent games, the kids who were exposed to more of them acted out more over the course of a year. In one study of 430 third-, fourth-, and fifth-graders, published in 2007 by psychologists Craig Anderson, Douglas Gentile, and Katherine Buckley, kids who played violent video games more often  “changed over the school year to become more verbally aggressive, more physically aggressive,” and less helpful to others. Perhaps this makes intuitive sense: The games desensitize kids to one kind of human suffering, and that makes them think less about inflicting another kind.

There’s another more skeptical school of thought, however. What if kids actually see video games as a vehicle for venting or pure fantasy – meaning, effectively, as a substitute for real world aggression and violence? In a 2009 study that looked at different causes of youth aggression, Christopher Ferguson, Claudia San Miguel, and Richard Hartley found that the strongest predictors of youth violence (as opposed to the more amorphous idea of aggression) were depression and hanging out with delinquent peers. In this study, video game violence didn’t predict violent behavior—with the exception of bullying, for which there was a slight effect. Ferguson, a psychology professor at Texas A&M, says that Anderson’s studies don’t measure clinical or pathological aggression, so the increase they find isn’t necessarily harmful. “Aggression isn’t bad except in high amounts,” he says.

When the U.S. Court of Appeals for the 9th Circuit considered the gaming industry’s challenge to California’s ban, the court sided with the skeptics, dismissing much of the literature. Why did the court read the research differently than the American Psychological Association and the American Academy of Pediatrics? One reason is the narrow way in which the case was framed. When the California assembly passed the ban, it gave two reasons: “preventing violent, aggressive, and antisocial behavior” and “preventing psychological or neurological harm to minors who play violent video games.” But by focusing entirely on the well-being of the kids playing the games, the state oddly gave up on the justification of how those kids are aggressive toward other people. And in fact the 9th Circuit discounted some of the research because the findings relate “to the player’s violent or aggressive behavior toward others” but not to psychological or neurological harm to the player himself.

The broader legal context also matters here. Video games are a form of speech, which means they’re presumably protected by the First Amendment (maybe their narrative is all about killing and maiming, but it’s still a narrative.) The Supreme Court has allowed states to ban the sale of only one kind of speech to kids—porn. That ruling, from a 1968 case Ginsberg v. New York, allowed the state of New York to stop teenagers under the age of 17 from buying “girlie magazines” that adults would be allowed to buy. It’s the exception to the First Amendment that allows states to regulate obscenity when they think kids will see it. No court has extended that idea to violent content, though. According to Lyle Denniston on SCOTUSblog, six states plus a county, in addition to California, have passed this kind of sale and rental ban, and every time a lower court has reviewed such a law, it’s been struck down.

If you ask me, the law gets it backward. I’d pick shielding my kids from violent content over sexual content any day of the week. But of course I can do that without any help from the government. The question laws like California’s raise is whether the government should step in when parents don’t. Do such laws protect kids whose parents are indifferent to their well-being? Or do they intrude on the family, getting in the way of all those parents who have made the decision that these games are perfectly fine for their kids? “My child is 7, and I don’t morally want him to play these games,” Ferguson says. If you’re morally opposed, absolutely don’t let your kid play them!But when we get to the point of letting other people decide this, that’s scary.”

I argued the opposite side the other day when we talked about this case on the Slate Political Gabfest. I’m not a First Amendment absolutist, and slippery slope arguments often don’t move me, so I can’t find it in my heart to worry about the great loss of freedom entailed in telling kids that they can’t buy their own copies of Grand Theft Auto. They’ll survive and so will the gaming industry. But then I thought more about the specifics of this law. To justify a limit on speech, which is what upholding California’s law would be, courts have to find that the state has a compelling interest and has used the least restrictive means to achieve it. Let’s stipulate for a second that the research on the link between playing games and acting more aggressive is good enough, despite the reasons for skepticism. What about the least restrictive means part? Does it really make sense to bar older teenagers from buying violent games? By 15 or 16, do they really need the state acting as their protector?

In this context, the answer is probably no. The idea that a 17-year-old can go to an R-rated movie alone and then be turned away at the video store seems kind of silly. Which means California’s ban is broader than it should be. And if the state lowered the age, say to 14, how many kids would it really affect? Isn’t the problem, if there is one, that parents are buying these games for their younger kids, rather than that kids are showing up at the store with $60 and toting the games home themselves? Video games are already labeled to alert parents to the violence inside the box. As Adam Cohen points out in Time, some consoles come with controls so parents can block games they don’t want their kids to play. Banning the sale of these games to teenagers is an ineffectual gesture that mostly misses the point. It’s not up to the government to get kids to stop playing these games, whether they’re harmful or immoral or just a waste of time. It’s up to us.

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