Sex v. Violence in Children’s Video Games

Dante's Inferno

In Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011), the United States Supreme Court made a sharp distinction between obscenity and violence in regards to video games directed at children because the California Act at issue mimicked a New York statute regulating obscenity directed towards minors that was challenged and upheld. The Court used the distinction to implicitly endorse the upholding of the New York statute but overturn the California Act despite the similar language.  

As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct.  

 . . . Our opinion in Winters . . . made clear that violence is not part of the obscenity that the Constitution permits to be regulated. The speech reached by the statute contained no indecency or obscenity in any sense heretofore known to the law. Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child. We held that the legislature could adjust the definition of obscenity to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests . . . of . . . minors. And because obscenity is not protected expression the New York statute could be sustained so long as the legislature’s judgment that the proscribed materials were harmful to children was not irrational.       

     The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

Alice: Madness Returns

    

     That is unprecedented and mistaken. Minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

 (Internal quotations and citations omitted.)

Cinderella: Magical Dreams

Having made the distinction between obscenity and violence, the Court uses a series of examples as support for finding no longstanding tradition of restricting children’s access to depictions of violence in the United States. It is interesting to muse over the examples the Court chooses to highlight, having the entire catalog of American children’s literature from which to choose: Snow White, Cinderella, Hansel and Gretel, Odysseus, Inferno, and Lord of the Flies. The Court also uses this opportunity to engage in wordplay.

      California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.  

     High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

(Internal quotations and citations omitted.)

Snow White and the Seven Dwarves

The Court does not similarly use a series of examples as support for finding a longstanding tradition of restricting children’s access to obscenity in the United States, but the upholding of the New York statute in a previous case likely makes such support unnecessary. 

The enshrinement of the distinction between obscenity and violence towards games directed at children, coupled with the explicit rejection of prohibition of even offensively violent games directed at adults, is beneficial for the medium. The mark of a medium is the diversity of ideas able to be expressed through the medium. Similarly, for a style of expression to flourish, all ideas are ideally capable of being expressed using the style. For example, musical genres (e.g. country, hip-hop, rap, alternative, electronic) begin with only a narrow focus of ideas able to be expressed. As more artists co-opt the style, the focus becomes wider (more robust) leading to increasing popularity. To be sure, there was some backlash against the rock ballad, the gangster love song, and slow metal by purists, but the decision in Brown preserves some of the robustness of the video game medium.