US Supreme Court rules video games are protected speech

Wednesday, June 29, 2011

In a 7-2 decision handed down on Monday, the US Supreme Court struck down California’s violent video game law and ruled that video games are protected speech covered by the First Amendment. The California law banned the sale and rental of violent video games to minors.

The underlying question was whether the violence in video games has the ability to affect children more than violence in other media, such as books, movies, plays and other forms of entertainment.

Justice Antonin Scalia, writing for the majority, said that depictions of violence have never been regulated by the US government. Thus violent videos are not to fall under government control as does pornography but is to be accorded the same First Amendment protections as other forms of entertainment. The sale of violent video games is not to be criminalized and California’s attempt to do so was “unprecedented and mistaken.” Scalia noted, referring to fairy tales, that “the books we give children to read—or read to them when they are younger—contain no shortage of gore.”

The beginning of the decision states, “Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And ‘the basic principles of freedom of speech…do not vary’ with a new and different communication medium.”

“The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.”

The justices were not convinced by the existing research that the interactive nature of video games pose a greater risk to society because of their interactive nature. None of the results of the existing research put before the court showed that violent games cause violent behavior. “Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly under-inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.”

According to Nadine Kaslow, professor and chief psychologist at Emory University Department of Psychology and Grady Hospital, the evidence regarding the effects of violent video games is mixed. While there is evidence to suggest that exposure of children to violence results in more aggressive and less pro-social behavior, some studies show there is no negative effect, she said. She point out that toy guns were popular and parents monitored whether toy guns were allowed in the home.

This ruling does not prevent private retailers from placing restrictions on their sale of video games. The video game industry currently has its own rating system, much like that used for movies, and educates retailers in using the rating system to prevent minors from buying mature-rated games. According to PC World the industry’s compliance is better than that of other entertainment industries. Further, parental controls have been added to game consoles.

The view of the Entertainment Software Association that a better strategy is the education of parents rather than court battles.