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.