Two weeks ago, the Supreme Court heard oral arguments in a free-speech case in which, paradoxically, representatives of the rock ‘em, sock ‘em Terminator of movie and video-game fame (a.k.a. Gov. Arnold Schwarzenegger) defended a California law that prohibits the sale or rental of extremely violent video games to minors, levying a fine of up to $1,000 per violation. Those who are 18 or older remain free to purchase such games on their own behalf or on behalf of minors. The law puts teeth in the effort to prevent kids from buying games in which players routinely commit gratuitous acts of extreme violence, such as bludgeoning people, decapitating them, setting them afire and urinating on them. As Chief Justice John G. Roberts Jr. said during the arguments, “We don’t actively expose children” to that kind of thing.
FOR THE RECORD:
Video-game law: In a Nov. 17 Op-Ed about the Supreme Court’s consideration of a California law prohibiting the sale of some video games to minors, words were dropped that confused the meaning of a sentence. The article said that for the government to regulate potentially harmful speech, the court demands that it prove that “the speech causes and alleviates the harmÃƒÂ‚Ã‚Â….” It should have said the court demands that the government prove that “the speech causes, and the regulation alleviates, the harmÃƒÂ‚Ã‚Â….” —
The plaintiffs in the case are not minors who are eager to receive the “speech” in question but rather the games’ manufacturers, who stand to lose profits if the law is upheld. Despite the fact that it seems the 1st Amendment is being used to protect the manufacturers’ purses rather than their ideas, lower courts across the country have uniformly invalidated such video-game restrictions on free-speech grounds.
In doing so, these courts have applied — as they must — a completely unsatisfying set of 1st Amendment rules that the modern Supreme Court has developed. The rules make it almost impossible for state and local governments to address legitimate harms posed by certain types of expression.
First, if the government singles out particular types of speech for regulation because of the potential harm they can cause, the court demands that it meet virtually impossible standards for proving that the speech causes and alleviates the harms no matter how limited or reasonable the regulation may be (e.g., get your parents’ permission to buy this game). Though the court pays lip service to the principle of deferring to elected representatives on these issues, it does so amid strident rhetoric proclaiming that regulations of speech on the basis of its content are presumptively unconstitutional, subject to the strictest of scrutiny and can rarely, if ever, be upheld — again, no matter how limited the burden such a law might impose.
It is no wonder, then, that in the case of violent video games, lower courts have ruled that although studies have found a “correlation” between such games and aggressive behavior in young people, restrictions on minors’ purchases must nonetheless be struck down because the government has failed to demonstrate sufficient “causation” between those behaviors.
When the government takes another tack and attempts to argue that extreme video-game violence should be added to certain 1st Amendment exceptions the court has traditionally recognized — for problematic expression such as threats — it confronts another unwise rule, this one established just last spring in a decision written by Roberts. In a case dealing with animal cruelty videos, Roberts declared that, from that point on, no new exceptions would be recognized if they cannot be found in our nation’s history and traditions.
So it was ironic to hear the incredulity and indignation in Roberts’ voice as he questioned the video-game industry’s lawyer: “So just to be clear … there is nothing the state can do” to address extreme video-game violence? “The answer is yes, Your Honor,” came the foreseeable response. Justices Stephen G. Breyer and Samuel A. Alito Jr. expressed similar exasperation about the situation.
The main theory behind the Supreme Court’s stringent approach — which, to be fair to Roberts, well precedes his tenure — is that it must ensure that the government does not censor speech merely because it dislikes it under the pretext of addressing harms caused by it. But this hardly seems applicable to the law at issue here, which does not censor anything but rather insists on some parental oversight on the video games their kids buy and play.
In City of Ladue vs. Gilleo, a decision from the 1990s, Justice Sandra Day O’Connor wrote a separate opinion lamenting the court’s unwillingness to “confront some of the difficulties with” its severe approach to content-based regulations of speech, including the fact that such regulations are “occasionally struck down … even though common sense may suggest that they are entirely reasonable.” The court should heed O’Connor’s wishes now and use the video-game case to engage in such a confrontation. It should rethink its approach, allowing state and local governments more latitude to make reasoned determinations that certain types of speech pose a heightened risk of harm.
Definitional challenges will remain: How violent must a game be to trigger regulation? But the court has managed to draw workable lines in other areas of free-speech law, such as those covering obscene sexual materials. The California law at issue offers one possibility: It covers only those games that allow players to kill, maim, dismember or sexually assault people in such a way that the entire game lacks any serious value for minors.
Without a rethinking of its fundamental approach to such laws, the Supreme Court’s extreme 1st Amendment rules will continue to breed extreme speech that can cause harm, and our representatives will remain powerless to address it. Even the Terminator can’t swallow that.
Barry P. McDonald is a professor of constitutional law at Pepperdine University who served as a law clerk for the late U.S. Chief Justice William H. Rehnquist.