US Supreme Court Decision on Violent Video Games

Yesterday the United States Supreme Court delivered a 7-2 opinion about violent video games: Brown, Governor Of California, et al. v. Entertainment Merchants Association et al. [PDF]. Justice Scalia wrote the majority decision, in which it was decided that a California law prohibiting the sale or rental of “violent video games” to minors is invalid as violating the first amendment protecting freedom of speech.

As might be expected, Scalia reviewed those restrictions on speech that have been supported by the courts, finding them in American traditions as spelled out in United States v. Stevens [PDF], a case concerning depiction of animal cruelty decided by the Supreme Court a year ago:

Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.

… We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

Of the California law, Scalia said:

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.

And he cited numerous books in which violent acts occur, for example, Grimm’s Fairy Tales, Homer’s Odyssey, Golding’s Lord of the Flies. As well, he rejected the expert evidence produced at trial by California because it showed only a correlation and not a causal relationshihp between depiction of violence and subsequent violent behaviour by children.

I’m not suffiently armed with knowledge to take on a legal critique of this judgment here, though I imagine any critique would want to examine, among others, such things as:

  • the fact that this is to a significant degree corporate speech we’re protecting; though it’s not advertising, the suit is brought not by a disappointed creator of a fiction but by an industry;

  • the conflating the relatively new medium of video games with other forms of expression (there’s a ready place for novelty) while at the same time binding the court’s hands with a traditional list of exceptions (there’s no place for novelty);

  • the difficulty any social research will having in pointing to a direct causal link;

  • the court’s view of parenting and the rights of parents in relation to the protection of children (“The Puritan tradition in New England laid the foundation of American parental authority and duty. See MacDonald 6 (‘The Puritans are virtually the inventors of the family as we know it today.’)”);

  • and, speaking of Puritans, the radically different treatment at law of sex and violence.

The dissents make important reading, of course. Here is Justice Breyer eloquently (to my mind) enlarging on the last point above:

But 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?

What concerns me, and has for a while now, is not so much whether this is licit or illicit conduct — that is, what the law has to say about violent video games — but the prevalence of violence in video games and their immense popularity as social facts. And, I have to add, popularity with boys and young men; I suspect (but do not know) that girls and young women do not find these violent games as engaging. Aside from the issue of causing harm to children (about which I’m uncertain: I speak as someone who played “cowboys and Indians” as a child and who treasured my collection of cap guns), I would ask simply what it says about us as a society that these passtimes are the favourite passtimes of male youth.

It might be a sensible displacement of our “shadow sides” onto a harmless object — a waking dream, if you like: no harm, no foul. Or it might mean something more unpleasant.


  1. I agree on the bizarrely different perception of sex and violence in issues like this. It’s like no one sees the treatment of one as applicable to the other, of course people tend to have a problem with somewhat obvious (IMHO) analogical reasoning.

  2. David Cheifetz

    Or, as a judge of the House of Lords wrote more than a century ago, “every lawyer must acknowledge that the law is not always logical at all”. Some members of SCOTUS, who, we are supposed to assume, are the paradigm of lawyers (in their capacity as judges, of course)are merely proving the point more “paradigmically”.