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Supreme Court's Upcoming Decision On
California's Video Game Law May Permanently Prohibit Government Threats of
Legislation Over Media Forever
Parents living in California are likely well aware that the constitutionality of the state's 2005 legislation prohibiting the sale of violent video games to minors is about to be decided by the Supreme Court, with the hearing set for November 2, 2010.
The law was struck down by a federal appeals court
on the basis the legislation violated the First Amendment. However, considering
the Supreme Court's previous decisions that have determined minors do have First
Amendment rights, I'm fearful they will move toward the logical conclusion that
preventing an eight-year-old from buying a game with human chopping zombies
would also violate his First Amendment rights.
But even more
troubling are the far ranging effects that could occur if the Supreme Court
upholds the decision of the US 9th Circuit Court of Appeals. For a decade the
Federal Trade Commission has provided reports on the status of marketing violent
entertainment to children (links to all six reports from September 2000 forward
can be
found on this page). Over the years of these reports, the FTC has considered
-- perhaps even threatened -- that legislation will be enacted if the industry
can't manage to enforce their own voluntary movie, music, television and video
game ratings. If the Supreme Court decides it is unconstitutional to restrict
the First Amendment rights of children, this will indeed remove the threat of
legislation over the entertainment industries. And with that threat removed, can
we trust these organizations to continue enforcing their own voluntary
restrictions?
Now that the
Supreme Court has agreed to make a decision on the ruling, the battle lines are
drawn in this case that may have ramifications well beyond the Golden State. Due
to its importance, many are lining up on either side to make their case.
Possibly the most surprising entrant who initially appears to be siding with the
video game industry in supporting the abolition of the law is Utah Attorney
General Mark Shurtleff.
Representing one of
the most family centered states in the Union, one would assume Utah would be
first in line behind the notion of protecting your children from violent games.
Shurtleff's surprising suggestion, reported on
August 20, 2010 in the Salt Lake Tribune, that he may file a brief opposing
California's legislation has caught the ire of many pro-family organizations,
including media watchdog non-profit Common Sense Media and Arizona-based United
Families International. Says CEO James Steyer from Common Sense Media, "It is
hard to believe that someone making these statements would support the video
game industry’s anti-child safety position."
It truly does seem
like a no-brainer for anyone concerned about families. Yet in the same Salt Lake
Tribune article, Shurtleff defends his position, saying that if the Supreme
Court rules in California's favor and upholds the 2005 law, it will unwittingly
recognize a casual link between video game violence and violent crime. In
essence Shurtleff is concerned violent criminals could use a childhood of video
game playing as a legitimate defense for their criminal actions.
It's an interesting
theory, but I'm far from convinced. (The fact that Shurtleff received $3,000
from the Entertainment Software Association in 2008, also reported in the Salt
Lake Tribune article, certainly does little to help his argument.)
I also can't help
but wonder how many other countries have managed to restrict access of violent
adult materials from children through legislation. The Canadian province of
Ontario has similar laws and still seems to keep murderers behind bars. In the
same year California enacted their legislation, Ontario made a small change to
the underlying definition of a motion picture in their
Film Classification Act that included, "an interactive moving image such as
a video game...". This effectively gave the ESRB ratings, which are only
voluntarily enforced in the US, legal clout in Ontario. (In Canada, all movie
ratings are enforced by legislation, as opposed to the voluntary rating system
used by the MPAA for movies or the ESRB for video games in the US.)
Australia has
similar laws and only now is looking at adding a rating to their system to allow
the most violent games to be made available for sale to adults. At
present some of these games are completely banned from the country. New Zealand
and the UK have also used legislation to control select video game titles in
their countries.
Obviously no state
Attorney General can control the outcome of the Supreme Court's decision. It's
also important to know the Attorney General of Louisiana led a coalition of 11
states in support of the California law. Conversely, media giants are
taking their expected positions. Editorials in the
Los Angeles Times and
New York Times are firmly opposed to the idea of using legislation to
restrict the First Amendment rights of children -- even at the cost of giving
them possible access to extremely violent video games.
Certainly this
whole process begs the question of what responsibility government has in the
protection of children. Interestingly, the answer to this question was also
offered in Ginsberg v. New York:
"
In other words,
it's "altogether fitting" for a government to help parents protect their
children. If pornography qualifies (and remember, this case in 1968 was
considering a magazine with photos of a woman's bare breasts and buttocks --
something we are seeing on prime time television today) shouldn't video games
that glamorize murder and torture? I find it ironic that in this day, when we
are so concerned about the physical safety of our children, we continue to balk
at even the slightest restriction of personal freedom instead of prioritizing a
child's mental health. I truly hope legislators will uphold California's right
to prevent minors from purchasing violent video games and also avoid setting a
serious precedent that will remove any threat of legislation from the
entertainment industry.
Rod Gustafson
Besides writing this column for the Parents Television Council, Rod Gustafson authors Parent Previews® - a newspaper and Internet column (published in association with movies.com) that reviews movies from a parent's perspective. He's also the film critic for a major Canadian TV station, various radio stations and serves on the executive of the Alberta Association for Media Awareness. Finally, his most important role is being the father to four wonderful children and husband to his beautiful wife (and co-worker) Donna.
Parenting
and the Media by Rod Gustafson
The Parents
Television Council -
www.parentstv.org
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