Supreme Court Rules Against Video Game Rental Restrictions

The right to free speech as defined in the First Amendment is not an absolute, but the US Supreme Court has historically exercised great caution when limiting its scope. Yesterday, the USSC rejected a California law that restricted the sale/rental of violent video games to minors. Prior to now, multiple states have passed similar laws, all of which have been struck down by various judicial courts.

The USSC rejected the California law for multiple reasons. In the US, most of the restrictions to free speech are procedural. These are collectively referred to as the "time, place, and manner" restrictions. Local governments, for example, are allowed to require that large groups obtain a permit before holding a rally--provided that the criteria upon which a permit is rewarded or denied are content-neutral.

Speech may also be restricted if it's defined as 'obscene.' This last is typically applied to hardcore pornography, though the latter has no formal definition. Potter Stewart, a former Justice of the Supreme Court, famously wrote that hardcore pornography is hard to define, "but I know it when I see it." The last category of restricted speech is reserved for "fighting words," imminent threats, or what Oliver Wendell Holmes once described as speech that presents "a clear and present danger."

This used to be a nice neighborhood.

California's law attempts to establish an entirely new category of content regulation that applies uniquely to content for children. As the USSC notes, "This country has no tradition of specially restricting children's access to depictions of violence." By comparison, the MPAA's movie ratings, are voluntary. Theaters agree to uphold the ratings standards, but are under no legal obligation (federal, state, or local) to do so.

The law attempts to claim that violent video games are a unique danger, insomuch as they require active player participation. According to the Justices, "Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive...California also cannot show that the Act's restriction meet the alleged substantial needs of parents who wish to restrict their children's access to violent videos. The video-game industry's voluntary ratings system already accomplishes that to a large extent.

The brief goes on to note that the California law attempts to paint video games as uniquely damaging in a manner entirely consistent with history. At the turn of the century, cheap novels called "penny dreadfuls" were depicted as endangering the morality of the young. They were succeeded by motion pictures, radio dramas, comic books, television, Dungeons & Dragons, and musical lyrics. Video games are nothing but the latest fashionable scapegoat, framed by an
excess of spooky language.

The final reason the court ruled the law unconstitutional has to do with the link between violent behavior and video games. In its appeal, California argued that competing psychological studies are sufficient proof to justify the state's predictive link. The research studies behind that predicted link were, as the decision noted, performed by Dr. Craig Anderson and "suffer from significant, admitted flaws in methodology. They show at best some correlation between exposure to violent entertainment and miniscule real-world effects, such as children's feeing more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."