When California passed a law barring children from buying violent video games, we figured it might survive the inevitable constitutional challenge because kids don’t have the same free speech rights as adults, with pornography being the most obvious example.
Well, kids still can’t buy pornography, but they do have an equal right to buy violent video games, according to a 7 to 2 decision by the Supreme Court this week. The decision removes a possible tool from parents determined to prevent their kids from playing games in which, for example, women are beaten with shovels and then decapitated, or people are shot, then doused with gasoline and set on fire.
In one game outlined in the litigation, the player has the option of urinating on his shooting victims. You can see why California lawmakers might have thought their legislation could be helpful. But a majority on the court wasn’t persuaded.
“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” wrote Justice Antonin Scalia for five justices in the majority. “That suffices to confer First Amendment protection.”
We never doubted that video games communicate ideas or that they deserve First Amendment protection. Any attempt to curb access to them by adults, or to dictate their content, would be an outrageous infringement on freedom, no matter how disreputable their overall “social messages” or how great their possible harmful influence. But then California never attempted to bar adults from buying violent games for their kids.
Parents will cope, of course, as they already do in states such as Colorado, where such laws do not exist. At the very least, they can still keep such games out of their homes.
Although we thought California’s legal position had merit, we always considered the case involving minors’ access to violent videos a close call. As Justice Scalia points out, “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. Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s fairy tales, for example, are grim indeed. . . . Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”
Scalia goes on to identify all manner of violence in children’s entertainment, from cartoons to films. But he appears remarkably confident that the violence and degradation found in some video games are not in a class by themselves.
Although the court majority expresses sympathy with the “concerns that underlie” California’s law, the justices are skeptical about video games’ potential harm. We hope they’re right, although our advice to parents is to take no chances.
