The Terminator vs. the Constitution

California's video game law does violence to the First Amendment.

Does a zombie count as "an image of a human being"? What about an android or a shape-shifting alien? If his arm regenerates when you hack it off, does that still amount to "maiming"? Are you "killing" him if he comes back to life after you incinerate him with a flamethrower?

These are a few of the questions raised by California's law against selling "offensively violent" video games to minors. But the most important question is this: Should the Supreme Court, which considered arguments for and against the law on Tuesday, create an exception to the First Amendment at the behest of moral crusaders who, like critics of dime novels, motion pictures, and comic books in earlier generations, see a newly popular medium as an intolerable threat to the youth of America?

California Gov. Arnold Schwarzenegger, who starred in violent movies that have inspired several violent video games, nevertheless argues that the Court should uphold the law (which he proudly signed) by extending the logic of a 1968 decision that allowed states to impose age restrictions on sales of pornography. But that ruling was based on the obscenity doctrine, which holds that certain kinds of sexual material are beyond the scope of the First Amendment even for adults.

The Court has never taken that position with respect to violence. Furthermore, as two industry groups note in their challenge to California's law, "Depictions of violence, unlike obscenity, have played a longstanding and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to Star Wars and Harry Potter."

Although California's law applies only to video games, the principle espoused by its defenders would authorize censorship of other media as well—a point that Justices Antonin Scalia and Ruth Bader Ginsburg, who ordinarily do not agree on much, both made in questions on Tuesday. There is no constitutional basis for distinguishing between video games, a form of artistic expression that tells interactive stories, and books, movies, or TV shows.

The evidence that California cites to support a video game exception has failed to persuade any of the federal appeals courts that have considered this issue. As the U.S. Court of Appeals for the 9th Circuit noted when it overturned California's law last year, "Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the State's claimed interest. None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm."

In any event, the research does not support the distinctions California wants to draw, since it implicates TV shows as well as video games and cartoonish as well as realistic violence. The trade groups challenging the law note that the state's main expert witness "admits that even viewing a picture of a gun has the same aggressive effect as playing a violent video game," while "one of his fellow researchers claims to find nearly identical links between aggressive behavior and reading violent passages in the Bible."

Although California says it is only "reinforcing parents' authority," there is little evidence that parents need the state's help. They already can use the industry's rating system, backed up by parental controls built into game consoles, to regulate the games their children play.

Unlike the industry's age-based ratings, California's law treats 17-year-olds the same as preschoolers. Its vague standards would encourage the industry to err on the side of labeling games as off limits to teenagers, while its penalties would discourage stores from stocking such games, thereby affecting adults as well as minors.

Despite the far-reaching implications of the constitutional license California seeks, it complains that it cannot reasonably be expected to supply "empirical proof of how expressive material impacts such nebulous concepts as one's ethics or morals." It could avoid this problem if it stopped using such nebulous concepts to justify censorship.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Suki||

    Good morning reason!

    Hope your staff is happy with that Obama supporting new Senate. Keep teaching the Republicans a lesson.

    Jacob, thanks for agreeing with Rush on the First Amendment and video games.

  • David||

    Team Red! Rah rah rah!

    They're all assholes.

  • Tim||

    Obama's lost his Senate rubber stamp, and face it- a 51-52 seat Senate GOP majority would have been placing us at the mercy of RINO's. Maine's delegation would have called all the shots.

  • ||

    How come every newspaper article refers to this as the "Mortal Kombat" law or otherwise makes reference to a 20-year old game? And if all my teenaged friends and I could play "Mortal Kombat" for hours on end, apparently still the gold standard in offensive video games, without apparent long-term ill effects, why should video games today be any more worrisome?

  • ||

    In this case, Justice Sotomayor brought up Mortal Kombat-- and specifically referred to it as an iconic game and used it to question the ruling.

    Between Justices Scalia, Thomas (his Fox v. FCC concurrence where he doubted the FCC's power to censor obscenity on the airwaves is enough), Ginsburg, Kagan, and Sotomayor, I'm convinced that a formalist reading of the First Amendment will win here, overcoming any Breyer-Roberts-Alito attempts to be "pragmatic" about it.

    Little bitchiness between Alito and Scalia, as Alito joked that Scalia "wanted James Madison's opinion on video games," and Scalia fired back saying that "no, I want James Madison's opinion on violence."

  • Mr Whipple||

    Right? I think Grand Theft Auto is much more violent. You can beat a little old lady to death with a baseball bat, and continue to beat her bloody corpse until the cops show up, then, you can waste them, the SWAT Team, the FBI and the National Guard. But God forbid there should be a game that has sex in it.

  • DRM||

    But God forbid there should be a game that has sex in it.

    Plenty of video games have lots of sex in them.

  • Mr Whipple||

    Really? Which ones? I know there are some cheesy sex games on-line, but are there ones for the PS and XBox platforms?

  • Amakudari||

    Watch out, it's pretty hardcore stuff.

    Now, on the other hand, where I am, there's a "better" mix of sex and violence.

    The first link more-or-less NSFW, the second link (if you click on any of the reviews) 100% NSFW.

  • Joe M||

    There's a long tradition of sex in video games.

  • Ska||

    As far as mainstream games with sex in them - the God of War series has sex minigames in them; Fable II (and most likely Fable III) allows you to socialize with strangers and engage in sex with them if you get them to like you enough (both straight and gay, with or without condoms); FO:NV has several prostitutes you can have sex with (some for caps, some for drugs); GTA IV has prostitutes that will offer sex, BJs or hand jobs, as well as regular women you can date from online ads.

    None of these are graphic depictions however. God of War is probably the only one that actually shows tits in it.

    Red Dead Redemption has a cinematic scene where a Mexican revolutionary is banging a fat Mexican chick, tits on display, on a table. It's probably the most graphic sex scene I've ever encountered in a mainstream game. You do not get to control any aspect of it however; as I said it's a cutscene.

    Those are some examples off the top of my head.

  • Jay||

    Mass Effect and Dragon Age: Origens both have sex scenes. Mass Effect shows an ass. Fox News did a report on it, to hear the way they were talking about it, you'd have though it had penetration and a money shot. In Dragon Age, they have sex in all kinds of positions, but, I guess because of the Fox News uproar about Mass Effect, Bioware was afraid to show more nudity, so they left the character's underwear on the whole time.

  • ||

    I'm still reeling over my graphic design prof telling me, back in '82, that there is no future in video games.

  • Mr Whipple||

    You and me both. But back then all we had were Apple IIe and shitty compilers. I remember having to take a FORTRAN class in college. What a waste.

  • sarcasmic||

    But Archon was so much fun!

  • Ska||

    So you're telling me that Oregon Trail and Pirates! didn't give you hope for the future?

  • ||

    Good Christ, those late 70s computer classes I had to take in high school were mizzerble....

  • jtuf||

    According to my grad school mentor, real men program in FORTRAN.

  • ||

    I program in FORTRAN regularly. Now Pascal, that was a waste of time.

  • LarryA||

    When I was in junior high they apologized for a scheduling problem that forced me to take typing. Obviously as a college-bound male, I would always have a secretary to take dictation in shorthand and type my correspondence.

    OTOH, it was the original voice-to-text interface.

  • chris||

    Now you can shopping on our web. Buy your family or friend a pair of Jewelry . I think it is raelly a good gift. 

  • lasa||

    so love the Silver

  • jtuf||

    If we're supposed to protect our children from violent role models, why do we allow police officers to run DARE programs in our schools?

  • BakedPenguin||

    Because they're professionals who know how to handle guns.

  • ¢||

    I'm still reeling over my graphic design prof telling me, back in '82, that there is no future in video games.

    There wasn't, for you.

    The "crash" was on, Nintendo and Sony didn't need you, a market-wide resurgence was 15 years away, and game companies don't hire 40-year-olds, except as CFO.

    Academic In Correct-Prediction Shocker
    Laity stunned

  • Amakudari||

    15 years? We're skipping over the NES, SNES, Genesis, PlayStation, Nintendo 64 and all the PC games in between?

    The crash was extremely short-lived, and the issues had more to do with too many companies and too few good games than with a lack of demand. The industry itself grew like crazy.

  • ||

    Funny, I remember plenty of popular video games between 1982 and 1997.

    Also, dick comment.

  • Brian D||

    How many anvils to the head does Wyle E. Coyote have to take before we realize what it's doing to our children?!

    /sarcasm

  • ||

    The Supreme Court should never have agreed to hear this case. It's not a question of first amendment rights. The first amendment has been stretched to the point of uselessness, being applied to any form of expression. Art is a form of expression. Art is not speech itself. The first amendment doesn't, and shouldn't, protect any form of expression.

    As an aside, the federal government doesn't have the Constitutional authority to regulate speech or expression anyway, even in the absence of the first amendment.

    If the first amendment applied here then the state of California would be required to follow it. As it is, the law is perfectly legitimate if it's in line with California's constitution (I don't know if it is and I don't really care).

    All that being said, regulating the sale of video games is an entirely inappropriate government action regardless of whether government has the constitutional authority to do so.

    Finally, as much as I love video games, they aren't fundamentally a form of art or expression. Some are, but the vast majority are just games. Damn fun games, but just games.

  • ||

    Success at anything visual requires some level of artistic or aesthetic competency.

  • ||

    What criteria separates "speech" from more general "expression"? Is it simply a question of medium?

    And the majority of games are "just games" in the same way that most novels or films are "just stories". I'm not really sure what that tells us about their legal status.

  • ||

    Yes, the difference between Constitutional "speech" and expression is the medium/method. That's not to say that expression shouldn't be protected, just that it's not protected by the first amendment.

    You could argue that the first amendment has done more harm than good by putting speech on a pedestal, suggesting that other activities are not rights (e.g. selling video games).

    A lot of novels and films are just that, stories. I'm not saying that there's a clear distinction between games that are just games and games that are art, but a lot of the claims nowadays that something is art seem very self-serving.

  • seguin||

    It's because "artists" are fundamentally self-serving twats. In fact, so are people that claim that what "artists" say is "art" is anything more than purely subjective, which would make any attempt to classify something as permissible based on artistic merit just another path to tyrannical power over speech.

  • ||

    Art is subjective.

    Nothing should be classified as permissible based on artistic merit. Likewise, nothing should be classified as impermissible based on the lack of artistic merit.

    I don't care if a video game is in the Louvre. This isn't a first amendment issue.

  • ||

    Maybe we should make it illegal for minors to read the Bible as well. I hear that's full of sex and violence. Correct me if I'm wrong but I don't think Joseph Stalin played Grand Theft Auto as a teenager.

  • ||

    Grand Theft Tractor: Dekulakization of the Hooligans.

  • reasonistreason||

    +lol

  • Realist||

    Thank god for Reason! Defender of dope, video games and open borders. The three things that will make this country great.

  • ||

    Amen!

  • ||

    Legal Guns! Legal Sex! Legal Drugs!
    That's my motto!

  • Rhywun||

    First they came for my dope. Then they came for my video games....

  • Arf?||

    No, first they came for your wallet.

  • Tim||

    The one thing we can't have is realistic fantasy.

  • reasonistreason||

    California Gov. Arnold Schwarzenegger, who starred in violent movies

    Like the one where he played a fascist imperialist in the service of the bald Nazi corporatist overlord called Friedman?
    I loved that one!

    How can someone turn from a Friedman fan into a nanny?

  • ||

    "that ruling was based on the obscenity doctrine, which holds that certain kinds of sexual material are beyond the scope of the First Amendment even for adults."

    I didn't realize anything was beyond the scope of the First Amendment for adults. That's bullshit.

  • ||

    As a developer, I thank all the attention reason has given this.

  • ||

    Yay! Thank you California Libertarians who, if voting outside their party, overwhelmingly voted to re-elect the Big Brother State politicians who want to tell us all what to eat, where we can live, how we can get around, what we can watch and now, what games we can play. Thank you, soooo much!

  • LarryA||

    I think Madison would definitely have frowned upon the kids of his time for shooting at zombies and mutants.

    If teenagers were playing videogames back then, who would have shot at the Redcoats and Indians?

  • Dave||

    Firstly, I agree with at least some sort of governing of violence in movies, video games, etc. It makes sense to me only because I think sex/pornography and violence should be held to similar standards, whatever they may be - I'd personally rather my child see two people in the act that begins life than engaging in one that ends it, so it boggles my mind that there is legislature governing sex but not violence. But from what it sounds like, the California law is too vague.

  • ||

    Wait. You're saying that since there are laws restricting depictions of sex, that there should be similar laws regarding violence, even though you disagree with the laws about sex?
    So if you'd been around in 1850, you would have argued that we should be enslaving White people as well?

  • Chris||

    I can remember Arnold doing an intro for and praising Milton Friedman's "Free to Choose" series. What the hell happened?

  • Lisa||

    Technically, doesn't the First Amendment say that CONGRESS can't make a law restricting speech? So even if video games could be considered "speech", then anyone that isn't congress can still ban it from whatever place they have jurisdiction over. Which is why public schools can ban books.

  • coach outlet||

    frdu

  • ugg classic boots||

    fduio

  • mbt shoe||

    fdsui;

  • TwoFingers||

    Technically, you're an idiot.

  • Gregory Goldmacher||

    Then there are Japanese anime games such as Rapelay. How do those stack up?

  • G||

    I'd say they stack up as Japanese, and therefore not within the jurisdiction of the United States Congress unless there's a retailer carrying them within our borders.

  • nike shoes UK||

    is good

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement