Today, the United States Supreme Court is hearing oral arguments in the land of Californias appeal of a Ninth Circuit decision declaring unconstitutional a statute enacted in that state which restricted minors access to graphically violent video games. The Tour was but one of the more recent federal courts of prayer to fall down such laws because they believed the laws violate the free speech clause of the 1st Amendment.
(One of the earliest was authored by one of the more prominent conservative members of the judiciary, Richard Posner,which struck down an ordinance enacted in Indianapolis.)Every such statute or regulation which has been reviewed in the federal courts of prayer has been declared unconstitutional.These cases arose after a number of states and local governments acted to restrict minors access to graphically violent video games in the heat of school shootings like that at the Columbine High School in Colorado. These lawmakers acted after it was disclosed that the shooters were avid players of violent video games and some investigators found similarities between their methods and those employed in performing those games. Researchers have reached different conclusions about the linkage between playing wild video games and violent behavior. Some found a secure link, others found a correlation but could not establish causation, and yet others found little linkage at all. Indeed, several researchers have noted that youth violence has actually declined in recent decades.Most of the cases have addressed two issues: are video games speech as that condition is exploited in the 1st Amendment and, if so, may the state nonetheless restrict minors access to games in which the player participates in acts of graphic violence? Having examined past cases defining speech and applying it to the types of games at which these laws are directed, it seems open to me that video games are speech, or more exactly a spiritualist of speech.That is not a question open to serious dispute. The more disputable issue is whether the American Constitution permits states and localities to restrict minors access to such games. I think the result is yes.More than 40 years ago, the Supreme Court upheld a New York law restricting minors access to pornographic girlie magazines (which were legal for adults), finding them to be harmful to minors. The tribunal found that the country was justified in doing so despite the want of scientific certainty about whether they would actually harm young people, on the ground that parents take an involvement in the honourable and moral evolution of their children and make a good to ask assistance from the land in raising their children to be ethical and moral adults. Judge Posner and others have distinguished this character from graphic video games on the ground that the Tribunal has never approved restrictions of minors access to speech which was not in some way sexually explicit. Strictly speaking, this is true, but it fails to do the interview as to why the Court approved restricting minors admission to sexually explicit speech and whether that same rationale justifies restricting their access to graphically violent video games.The lower appellate courts have never effectively addressed that issue. Lets hope that the justices on the Supreme Tribunal will.My conclusion, argued in a lengthy law review article published in the University of Richmond Law Review and submitted to the Supreme Court, was that the same principle that justifies restricting minors approach to girlie magazines justifies restricting their access to graphically violent video games. Indeed, I think the case for restricting access to such games is even more compelling. In his opinion, Judge Posner noted that force is an ageless theme of literature and the house and one to which youth have been uncovered from time immemorial. What he failed to do was ready the usual sense distinction between reading about Brutus slaying Julius Caesar in Shakespeares play or seeing it acted on a stage or in a movie, and existence a virtual assassin in an interactive video game. To equate the two is a category mistake. They only are unlike in form and not only in degree.More importantly, there is no more motivation to get some scientifically certain psychological damage to minors who play violent games to justify restricting their admission to those games than there is to find scientific certain psychological trauma to teens who view girlie magazines. The matter in the earliest example was not psychological harm, but deterioration of the honourable and moral growth of youth. Just as viewing soft core pornography might have some new men to fall to see women as no more than objects to fulfill their lusts, playing violent video games may have some players to develop insensitivity toward their fellow human beings and their suffering.In another case, the Supreme Court upheld an edict by the Federal Communications Commission restricting the times at which broadcasters could air George Carlins Filthy Words monologue so that minors would be less likely to see it. In that case, the Court based its conclusion on the routines effect of debasing and brutalizing human beings.Compare Carlins seven dirty words (you can find recordings on the procedure on the internet) to video games such as Manhunt, in which the musician must kill or be killed by assassins who are tracking him low in a game based on a snuff video (one level involves the player decapitating an assassin with a machete), or Grand Theft Auto: Vice City, in which the player has sex with a prostitute, who he then kicks in the groin until blood spurts out and repeatedly hits in the mind with a golf club, or RapeLay, in which the player stalks and rapes women for points.If Carlins seven dirty words, which are only words, has the result of degrading and brutalizing human beings so that restricting minors access is constitutional, why wouldnt the same justification be still more applicable to the games I described and hundreds more like them? Yet the lower courts have uniformly failed to have this usual sense analogy.More than 60 years ago, Justice Robert Jackson observed, There is a risk that, if the Tribunal does not moderate its doctrinaire logic with a little practical wisdom, it will change the organic Bill of Rights into a suicide pact. The limiting of minors access to graphically violent video games is a clear illustration of where a little practical wisdom needs to trump doctrinaire logic. Finally, the Court has agreed to see a case addressing these questions. Lets hope a little practical wisdom prevails.Gregory K. Laughlin is law library director and associate professor of law at Cumberland School of Law at Samford University, Birmingham, Alabama.
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