The Supreme Court's decision, announced yesterday, finding that California's legislative attempt to ban violence in video games violated the First Amendment rights of children to access creative works, regardless of the levels of violence or brutality found in those works, contains some strong language favoring freedom of expression. The Court held that while states can protect children from harm, they have no "free-floating power to restrict the ideas to which children may be exposed".
The Court rightly reasoned that imposing this kind of restriction on video games was the proverbial slippery slope - because violence exists in many forms of media, including classic stories like Snow White, and Saturday morning cartoons.
The Court also had to address the issue of why, since it had upheld laws restricting minors access to sexually explicit material, it should not extend that same logic to violent material. Justice Scalia, writing for the majority of five justices, rejected that argument, noting that unlike hard-core pornography, there is no "long-standing tradition in this country of specially restricting children's access to depictions of violence". He also rejected the argument that children viewing violence in media has any causal link to violent behavior. At best, that research simply shows that some children have more feelings of aggression after playing the games - but there is no direct correlation between those feelings and any action being taken by the players.
The Court's decision follows a long line of cases rejecting a causal connection between video games and other violent media and children's violent or aggressive behavior. Ten years ago I participated in a Silicon Spin television debate with an attorney who had filed a lawsuit against a series of videogame companies on the theory that watching violent video games caused the shooters in the Columbine massacre to become violent mercenaries. The suit was subsequently dismissed for lack of proof of a causal link.
In her excellent essay in the June 26th issue of the New York Times Magazine, entitled "The Ninny State', Emily Bazelon points out that this is the same debate that in 1954 led Congress, based on the alleged "scientific" evidence of Dr. Fredric Wertham, to investigate whether violent comic books were a primary cause of juvenile delinquency. Fifty-six years of comic book censorship, which ended just this year, had no effect on juvenile delinquency; however those who would rather find media the cause of violence, instead of the harder social issues to solve, like poverty, illiteracy, joblessness, under-supported schools and teachers, racial and other forms of discrimination, continue with laws like this California statute to scapegoat media - it's an easier target.
Bazelon notes that there is an overwrought level of fear that parents have about the effect on their children of what they see and participate with in social media. She points out that the overall rates of child sex crimes and of teen sex are down since the 1990s, as are juvenile crime, school violence and teen fighting. She quotes David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, who calls the gap between parents anxiety and reality "juvenoia" , which he says reflects an "exaggerated fear about the influence of social change on children".
So while I agree with the Supreme Court's rejection of the California statute, I question the distinction Justice Scalia makes between media depictions of violence, and depictions of sexual activity. The social science claiming a causal link between depictions of sexual conduct in media, and behavior, by adults and children, is as equally fuzzy, vague and unsupported as the link between violent media and content. I am presently writing a law review article on this subject, and will share more of the results of my research in future blog posts and in the article, which I hope to publish either later this year, or in early 2012.