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.

A Rubric of Sense

Call of Duty: Modern Warfare 3

The most assailable portion of the majority opinion in Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011), is the rebuttal of the dissenting opinion, which focuses on interactivity. The dissent posed that video games are distinguishable from other mediums because video games offer a higher level of interactivity, hence realism. As such, the dissent argued, previous freedom-of-speech cases concerning other mediums do not control the outcome of Brown.

In rebuttal, the majority likened video games to literature, and quoted Judge Posner of the Seventh Circuit stating that all literature is interactive, “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”


However, considering the yet unrealized promise of virtual reality, the majority opinion is not future-proof. Consider three scenarios that simulate a soldier in a war: 

Medal of Honor: Vanguard

1) a person reading a book written as if the reader is the soldier; 

2) a person in front of a screen, controller in hand, playing a first-person shooter video game as if she is the soldier; and 

3) a person in a virtual reality machine of science fiction acting as if she is the soldier. 

The majority argued the middle scenario is more like the former, while the dissent argued the middle is more like the latter. 

Just as science fiction soon gives way to science fact, the middle scenario will give way to the latter. Consequently, the distance between literature and video games on the spectrum of interactivity will grow. Most likely, courts will be the arbiter that distinguishes points on the spectrum, and courts will need to provide a stable framework to judge interactivity. 

The best way to judge interactivity is by sense. More interactive mediums will simulate more senses, and at a better quality, than less interactive mediums. A court's consideration of the sense scale should be guided by our own experience as a species, giving priority to sight, touch, and sound over smell and taste. Considering the examples above:

Red Orchestra 2: Heroes of Stalingrad

1) This type of interactivity involves the “simulation” of every sense, but at such a low level that it may not be categorized as simulation at all. For example, the text of the book will describe what the soldier saw, touched, heard, smelled, and tasted. However, the reader is required to draw upon her own experiences to translate the text into simulations of each sense. Better terminology may be that the simulation is not direct, but indirect. That the reader is seeing the text, touching the book, hearing the pages turn, etc. is of no moment because those experiences are not part of simulating the soldier.

2) This type of interactivity involves direct but partial simulation of sight and direct simulation of sound. The simulation of sight is partial because the player does not see the screen in her peripheral vision. This scenario does not involve the simulation of touch because the player is not emulating the movement of the soldier nor experiencing what the soldier touches. That the player is touching the controller is of no moment because that experience is not part of simulating the soldier. 

3) This type of interactivity involves direct simulation of every sense. The only difference between this scenario and the actual soldier in the war is the player’s cognitive certainty of playing a game. Such certainty will cause failure in eliciting honest reactions to the simulation in some players. Circularly, this difference appears similar to a poorly written book failing to draw in the reader via failure to elicit honest reactions from the reader such as identifying with the characters, experiencing joy and suffering along with the characters, and all the other reactions mentioned by Judge Posner. Will such similarity be enough to support the majority’s opinion in Brown as applied to virtual reality? No because while virtual reality may illustrate the way the most imaginative are drawn into literature, laws are interpreted as applied to the most average. Among the most average, more will be drawn into virtual reality than literature.

Brothers in Arms: Double Time

Armed with a rubric of sense, courts will be prepared for the more stimulating simulation to come.

In Brief

On June 27, 2011, the Supreme Court of the United States decided Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011). At issue was California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§ 1746–1746.5 (“Act”), which prohibited the sale or rental of violent video games to minors. The Court held the Act did not comport with the First Amendment, affirming the Ninth Circuit.

Super Columbine Massacre RPG!

The Court began by noting that the First Amendment primarily protects political speech, but that it is difficult to distinguish politics from entertainment. Next, the Court stated that the principle of freedom of speech does not vary for new communication mediums. As such, because video games communicate ideas, they are protected by the First Amendment.

The Court next highlighted examples of speech that are not protected by the First Amendment: obscenity, incitement, and fighting words. A legislature, the Court explained, cannot add new categories to the list of unprotected speech because such an addition would be against the judgment of the American people as embodied by the First Amendment.

California argued that violent video games are obscene, and hence unprotected, but the Court, reviewing the history of obscenity, determined that the obscenity exception only applies to depictions of sexual conduct.

The Court next recounted a history of vilification of new communication mediums, and drew to video games a direct line from dime novels through motion pictures, radio dramas, comic books, television, and music lyrics. California argued that the interactive nature of video games distinguished them from previous communication mediums, but the Court dismissed the argument by stating that literature has been interactive since at least 1969 when the first choose-your-own-adventure book was published.

RapeLay

The Court rejected the notion that the content of the ideas communicated by video games, no matter how horrible or disgusting, was a valid basis for restricting their expression.

Consequent to finding video games subject to the protections of the First Amendment, the Court applied the strict scrutiny test to the Act. The strict scrutiny test required California to demonstrate that the Act was justified by a compelling government interest and was narrowly drawn to serve that interest. However, California was unable to show a direct causal link between violent video games and harm to minors. California was also unable to show that children’s exposure to violence in video games was distinguishable from exposure to violence on television, which was not similarly restrained by the Act. As such, the Court found the Act underinclusive when judged against its asserted justification. The Court reasoned that an underinclusive law cannot be narrowly tailored, hence cannot pass strict scrutiny, and hence cannot comport with the First Amendment.

The Court outlined the ESRB rating system, and the Court quoted a FTC report finding that the video game industry outpaces the movie and music industries in restricting target marketing of mature-related products to children; clearly and prominently disclosing rating information; and restricting children’s access to mature-related products at retail. As such, the Court reasoned the Act was not justified by a compelling interest, did not pass strict scrutiny, and hence did not comport with the First Amendment.

JFK Reloaded

The Court praised the good intentions behind the Act—protection of minors—but noted that constitutional limits on government apply to even the most well-intentioned act.

One Justice concurred separately, the concurrence joined by the Chief Justice. One Justice dissented.