Having made a career off fantasy violence, Gov. Arnold Schwarzenegger is an odd advocate for the regulation of violent video games. After all, his face (and, sometimes, his voice) helps to sell a number of electronic kill-fests. Yet there he was last week, pledging to appeal a federal judge's decision against a state law banning the sale of such games to minors. "Many of these games are made for adults," Schwarzenegger said, "and choosing games that are appropriate for kids should be a decision made by their parents."
Of course parents should screen the games their kids play. Parents should also limit the amount of time their kids watch TV, and shield them from all sorts of content they may be too young to process critically. But those are parental duties, not governmental ones. And the more lawmakers try to take over for parents on these issues, the more they run afoul of the Constitution.
In particular, it's well nigh impossible to regulate violent video games without violating the 1st Amendment's free-speech guarantee. The problem starts with proving that video game violence, in and of itself, is detrimental to children. Though some studies have found a link to increased aggression, others suggest that games are just one piece of a violent media environment that kids inhabit. And even if you assume that kids can be influenced by the games they play, it's hard to specify what level or type of violence is unacceptable for minors.
Nevertheless, state lawmakers pushed through a bill in 2005 that required violent video games to carry large labels (sounds good to us) and barred their sale to anyone younger than 18. Hoping to meet the Supreme Court's standard for restricting speech, they defined violence in much the same way the court defined obscenity: depictions of mayhem or rape that lack serious value for minors and are patently offensive when judged by community standards.
U.S. District Judge Ronald M. Whyte in San Jose agreed that the state has a compelling interest in protecting minors, but found that the law was too broad. Games are likely to have very different effects on 17-year-olds and 10-year-olds, yet the law treats everyone under 18 the same. And there's no proof that the law would be more effective at keeping violent games out of the hands of children than the industry's game ratings, Whyte wrote. Retailers have volunteered to enforce the ratings system by not selling or renting adult-themed games to minors, and the latest generation of game consoles can be programmed to block children from playing such games.
With Whyte's decision, the courts have now thrown out attempts by seven states, one county and one city to regulate violent video games. There's no reason to believe that appealing his ruling will change the outcome, or that it should. The governor shouldn't waste tax dollars in a relentless pursuit of certain defeat.