To curb violence, a society must find ways to deal with the factors that drive people to commit violence. On Monday, the Supreme Court decided that a California law that would have restricted the sale of violent video games to minors should not be one of those ways.
While the vote was 7-to-2, the majority was split on their reasons for the ruling. And the usual liberal and conservative groupings were not very much in play.
Those divisions reflect the difficulty of balancing free speech against government efforts to protect children from the obnoxious influences of increasingly graphic media. The mixed ruling also leaves open a legal door for state legislatures to craft better laws than California’s.
That state’s law was too vague in defining depictions of violence in video games. The state was also inconsistent in claiming that it was acting on behalf of parents but then letting parents decide if their children could use violent games.
Most of all, the evidence isn’t clear from numerous studies that violent games are a direct cause of violence. Indeed, youth violence has been in decline even as video games have been on the rise with gorier, more realistic, and highly interactive graphics.
Five of the justices relied on the idea that violent depictions for children have such a long tradition – from Grimm’s Fairy Tales to Harry Potter – with little history of restrictions. Legislators need to come up with compelling data and a strong state interest to override the First Amendment guarantee of free speech that applies even to children.
They also said California was not restricting other violent media (such as Road Runner cartoons), making it suspect that the state might use such a law to restrict the occasional political speech in video games. And the law made no distinction between young children and teenagers in the types of media violence that they should not see.
The majority ruling also cited the video-game industry’s own rating system that can help parents protect children. That excuse, however, does not recognize that the industry could very well drop those ratings if states stop trying to regulate violent games.
California, like a few other states, has tried to respond to parents who find it difficult to control their children’s access to violent media games. And pressure to restrict such games has risen after the recent killing sprees on college and high school campuses.
That feeling of helplessness and desire for government action was noticeable in one of the dissenting opinions written by Justice Stephen Breyer:
“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman – bound, gagged, tortured, and killed – is also topless?”
This ruling was definitive in its head count of justices, but it’s clear that the issue of reining in media violence is far from over. The scales of justice are still swinging despite this decision.