In a 7-2 decision, the U.S. Supreme Court recently struck down a 2005 California law banning the sale, rental and playing of violent video games like Call of Duty, Full Spectrum Warrior and Postal 2 to children under the age of 18.
This is a real win for video game manufacturers and First Amendment advocates, but a real loss for consumer protection.
The California law had proposed that video games with excessive violence display a label of 18, and that retailers would face a $1,000 fine for the rental or sale to those under the age of 18.
Excessive violence is defined by California as games where players choose to kill, maim, dismember or sexually assault an image of a human being or games that would appeal to deviant or morbid interests.
Many of these games are currently rated M for mature audiences. According to the Entertainment Software Rating Board (ESRB), titles in this category “may contain intense violence, blood and gore, sexual content and/or strong language.”
In his majority decision, Justice Antonin Scalia wrote, “Like the protected books, plays and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”
The logic is that video games are a form of art and communication that, because it is not obscene, should be upheld by the First Amendment.
As a parent, though, it raises concerns over the power given to gaming manufacturers to market violence to children. And, if Justice Scalia does not view video games as obscene, I think he should take a look at Grand Theft Auto San Andreas, in which gamers often purchase the services of prostitutes and later kill them for a refund.
As a country, we have laws prohibiting minors from purchasing alcohol, cigarettes and pornography to protect them. These laws are at least saying that minors do not have the capacity to make decisions about the purchase or use of these things, and that the law will intervene.
So, why wouldn’t violent or obscene games fall into the same category as things a minor doesn’t have the capacity to make a decision about and in which the law will intervene?
In his dissenting decision, Justice Clarence Thomas argued that the First Amendment does not necessarily extend to manufacturers who circumvent parents when marketing or selling directly to minors.
Justice Thomas writes, “Specifically, I am sure that the founding generation would not have understood ‘the freedom of speech’ to include a right to speak to children without going through their parents.”
The California law, which did not have a chance to be enacted before gaming manufacturers challenged the decision, indicated that the state had a “legal obligation to protect children from graphic interactive images when the industry fails to do so.”
Again, the Supreme Court said that the voluntary rating system used by the industry is an adequate screening tool for parents to judge the appropriateness of video games.
If these games are being marketed and purchased by youth under 18, though, do parents really have the opportunity to prescreen the ratings?
As members of an industry that rakes in $10.5 billion in annual sales, it is no wonder that video game manufacturers contested the California ban. Their interests are not in the well-being of the consumer. That responsibility falls hard on parents, leaving another potential danger for parents to police and regulate on their own.