Children’s right to buy violent videogames

Kiddies, you are now free!  Free to play Grand Theft Auto!  The Supreme Court has ruled that you have the constitutional right to play violent video games!

States cannot ban the sale or rental of ultraviolent video games to children, the Supreme Court ruled Monday, rejecting such limits as a violation of young people’s First Amendment rights and leaving it up to parents and the multibillion-dollar gaming industry to decide what kids can buy.

The high court, on a 7-2 vote, threw out California’s 2005 law covering games sold or rented to those under 18, calling it an unconstitutional violation of free-speech rights. Writing for the majority, Justice Antonin Scalia, said, “Even where the protection of children is the object, the constitutional limits on governmental action apply.”

Scalia, who pointed out the violence in a number of children’s fairy tales, said that while states have legitimate power to protect children from harm, “that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Justices Stephen Breyer and Clarence Thomas dissented from the decision, with Breyer saying it makes no sense to legally block children’s access to pornography yet allow them to buy or rent brutally violent video games.

“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Breyer said.

Video games, said Scalia’s majority opinion, fall into the same category as books, plays and movies as entertainment that “communicates ideas — and even social messages” deserving of First Amendment free-speech protection. And non-obscene speech “cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” he said.

via Can’t ban violent video sales to kids, court says – Yahoo! News.

OK, but there is a difference between reading about violence and what you do to play a video game, in which you actively though virtually commit the violence.  I wonder too what other constitutional rights children can claim over and against what their parents say.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Eric Brown

    I didn’t realize minors had full access to these rights… I thought that they were… minors. Not of their majority. Strange — I wonder what this will do to the movie rating system… not the NC-17 rating, but just the R. That is restricted, you cannot get in under 17 without an adult… but is that now legal anymore, since those films don’t necessarily fall into the legal category of pornography.

  • Eric Brown

    I didn’t realize minors had full access to these rights… I thought that they were… minors. Not of their majority. Strange — I wonder what this will do to the movie rating system… not the NC-17 rating, but just the R. That is restricted, you cannot get in under 17 without an adult… but is that now legal anymore, since those films don’t necessarily fall into the legal category of pornography.

  • http://cyberbrethren.com Rev. Paul T. McCain

    While I detest these violent games, I detest even more the thought of the nanny-state stepping into these situations and trying to exercise mind control.

  • http://cyberbrethren.com Rev. Paul T. McCain

    While I detest these violent games, I detest even more the thought of the nanny-state stepping into these situations and trying to exercise mind control.

  • Isaac

    I’ll point out that the ruling explicitly states that parents can restrict their children’s exposure all they want; the majority argument was that the law was an unconstitutional restriction on the parent’s right to choose what speech to expose their children to. It just puts games on the same footing as films in first amendment terms. Retailers can still restrict the sale of M-rated games to minors (which is currently more successfully enforced than the similar ban for R-rated films).

    The minority argument by Alito and Roberts brought up the concern that this will weaken the rating system. However, retailers such as Walmart are currently major influences on the requirement to have a rating, so that may not be a concern yet.

  • Isaac

    I’ll point out that the ruling explicitly states that parents can restrict their children’s exposure all they want; the majority argument was that the law was an unconstitutional restriction on the parent’s right to choose what speech to expose their children to. It just puts games on the same footing as films in first amendment terms. Retailers can still restrict the sale of M-rated games to minors (which is currently more successfully enforced than the similar ban for R-rated films).

    The minority argument by Alito and Roberts brought up the concern that this will weaken the rating system. However, retailers such as Walmart are currently major influences on the requirement to have a rating, so that may not be a concern yet.

  • Cincinnatus

    From a knee-jerk perspective, I find myself in agreement with the ruling. I’m sick of upset moms suing corporations because they don’t assume proper responsibility for their own households.

    But Breyer has a point in his dissent: the Court has already ruled that the government can censor pornographic material if it wishes. Upon what grounds do the foreclose the capacity to censor ultra-violent media?

  • Cincinnatus

    From a knee-jerk perspective, I find myself in agreement with the ruling. I’m sick of upset moms suing corporations because they don’t assume proper responsibility for their own households.

    But Breyer has a point in his dissent: the Court has already ruled that the government can censor pornographic material if it wishes. Upon what grounds do the foreclose the capacity to censor ultra-violent media?

  • WebMonk

    Like Isaac said, and contrary to Dr. Veith’s claim, there is nothing involving “constitutional rights children can claim over and against what their parents say.” This was a decision about what states can restrict to minors.

    I have some sympathy for Breyer’s general concept – if the state can restrict things like pornography to minors because [insert-myriad-of-decision-points-why-pornography-is-restricted-for-minors], then it seems ‘common sense’ to be able to restrict other types of speech such as violent speech for those same sorts of reasons. However, when it comes to applying actual law and real-life, I have to side almost entirely with Scalia and the majority on this case.

    ‘Violence’ is not grouped together with pr0n, and so restricting things with ‘violence’ in them would be a massive expansion of the state’s power into blocking another area of speech.

    Perhaps people believe that ‘violence’ should be in the same category as pr0n, but if they think the legalities surrounding the definition of what is pr0n or not gets tricky, they haven’t seen anything compared to trying to define levels of ‘violence’. Is it ‘ban-able’ violence to shoot characters? Does the level of realism affect things? Human characters? Human-looking? How to define realism? Blood shown? Killing them with hand weapons?

    Yeah – having the state be able to ban the ‘speech’ contained in video games based on violence is a phenomenally bad idea.

  • WebMonk

    Like Isaac said, and contrary to Dr. Veith’s claim, there is nothing involving “constitutional rights children can claim over and against what their parents say.” This was a decision about what states can restrict to minors.

    I have some sympathy for Breyer’s general concept – if the state can restrict things like pornography to minors because [insert-myriad-of-decision-points-why-pornography-is-restricted-for-minors], then it seems ‘common sense’ to be able to restrict other types of speech such as violent speech for those same sorts of reasons. However, when it comes to applying actual law and real-life, I have to side almost entirely with Scalia and the majority on this case.

    ‘Violence’ is not grouped together with pr0n, and so restricting things with ‘violence’ in them would be a massive expansion of the state’s power into blocking another area of speech.

    Perhaps people believe that ‘violence’ should be in the same category as pr0n, but if they think the legalities surrounding the definition of what is pr0n or not gets tricky, they haven’t seen anything compared to trying to define levels of ‘violence’. Is it ‘ban-able’ violence to shoot characters? Does the level of realism affect things? Human characters? Human-looking? How to define realism? Blood shown? Killing them with hand weapons?

    Yeah – having the state be able to ban the ‘speech’ contained in video games based on violence is a phenomenally bad idea.

  • WebMonk

    Cin – check out the standards (or lack thereof) courts use to define what is ‘pornography’ and find out why they’ve ruled it is legal to restrict it from minors. Now, try to apply those same sorts of standards (or lack of standards) to ‘violence’.

    In vaguely general concepts, Breyer has a nice-sounding point, but when it comes to actually implementing it in real life, it falls apart.

    I am looking forward to reading what Thomas had for his reasoning. I’ve read the majority of the majority ruling, and a couple chunks of Breyer’s position, but I haven’t had time to get Thomas’ position and read it. I wonder if he has significantly different reasons than Breyer.

  • WebMonk

    Cin – check out the standards (or lack thereof) courts use to define what is ‘pornography’ and find out why they’ve ruled it is legal to restrict it from minors. Now, try to apply those same sorts of standards (or lack of standards) to ‘violence’.

    In vaguely general concepts, Breyer has a nice-sounding point, but when it comes to actually implementing it in real life, it falls apart.

    I am looking forward to reading what Thomas had for his reasoning. I’ve read the majority of the majority ruling, and a couple chunks of Breyer’s position, but I haven’t had time to get Thomas’ position and read it. I wonder if he has significantly different reasons than Breyer.

  • Carl Vehse

    So parents need to restrict the video games their children are allowed to buy or play at home, and at the same time find out what they play at their friends’ homes or in arcades (the private detective business should start to boom).

    Maybe parents should encourage the children to read books. But not before parents read “My ‘Reprehensible’ Take on Teen Literature,” by Meghan Cox Gurdon, WSJ children’s books reviewer, discussing the response to her review of young-adult literature that “invites teenagers to wallow in ugliness, barbarity, dysfunction and cruelty.”

    And if parents are thinking about sending their kids to an LCMS Youth Gathering, they should read this BJS thread first.

  • Carl Vehse

    So parents need to restrict the video games their children are allowed to buy or play at home, and at the same time find out what they play at their friends’ homes or in arcades (the private detective business should start to boom).

    Maybe parents should encourage the children to read books. But not before parents read “My ‘Reprehensible’ Take on Teen Literature,” by Meghan Cox Gurdon, WSJ children’s books reviewer, discussing the response to her review of young-adult literature that “invites teenagers to wallow in ugliness, barbarity, dysfunction and cruelty.”

    And if parents are thinking about sending their kids to an LCMS Youth Gathering, they should read this BJS thread first.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    @7 Arcades still exist?

    I will be little more nuanced than Rev. McCain. I detest some, maybe most violent games. There are some where with a proper grasp of the difference between reality and fantasy are not bad. It is one thing to be rewarded for kidnapping prostitutes (the new Duke Nukem) and mowing down pedestrians (need I name it?) and another to be the defender of the realm fighting against great evil. I detest games like the new Duke Nukem and GTA and will never let my kids play them. At the same time, I am not a big fan of government censorship, including censorship of things I don’t like.

    I will also add, that this was a ruling against state censorship, not parental censorship. My kid ever buys it without my permission, well maybe losing $60 will be a valuable lesson, but hopefully in fulfilling my vocation by the time they are interested in games they will have a solid foundation to evaluate the good from the bad.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    @7 Arcades still exist?

    I will be little more nuanced than Rev. McCain. I detest some, maybe most violent games. There are some where with a proper grasp of the difference between reality and fantasy are not bad. It is one thing to be rewarded for kidnapping prostitutes (the new Duke Nukem) and mowing down pedestrians (need I name it?) and another to be the defender of the realm fighting against great evil. I detest games like the new Duke Nukem and GTA and will never let my kids play them. At the same time, I am not a big fan of government censorship, including censorship of things I don’t like.

    I will also add, that this was a ruling against state censorship, not parental censorship. My kid ever buys it without my permission, well maybe losing $60 will be a valuable lesson, but hopefully in fulfilling my vocation by the time they are interested in games they will have a solid foundation to evaluate the good from the bad.

  • Cincinnatus

    Webmonk: I’m quite familiar with Miller v. California and its historical predecessors. And, as I noted, I agree with you in affirming that the Court has here reached the right decision in accordance with our constitutional standards.

    But I am still fuzzy on the logic (again, I’ve not yet perused the whole decision). Your argument is one of practicality, not principle. It’s really difficult to determine what constitutes pornographic material, but the state still has the prerogative to censor it. Is the only claim here that it’s even more difficult to determine what constitutes unacceptably violent content? Ok, I buy that. But that’s not a constitutional argument, per se.

  • Cincinnatus

    Webmonk: I’m quite familiar with Miller v. California and its historical predecessors. And, as I noted, I agree with you in affirming that the Court has here reached the right decision in accordance with our constitutional standards.

    But I am still fuzzy on the logic (again, I’ve not yet perused the whole decision). Your argument is one of practicality, not principle. It’s really difficult to determine what constitutes pornographic material, but the state still has the prerogative to censor it. Is the only claim here that it’s even more difficult to determine what constitutes unacceptably violent content? Ok, I buy that. But that’s not a constitutional argument, per se.

  • WebMonk

    Cin, the entire legal reasoning surrounding pornography is based on practicality and not principle. At best one could say it’s based on ‘community principle’ sort of kind of. The statement “but the state still has the prerogative to censor [pornography]” is not a constitutional argument.

    The censoring of pornography is completely based on practical application/reason and not on constitutional arguments. The government has the constitutional ability to censor some types of speech, but their decisions about which types of speech to censor is more based on practical reasoning than on direct constitutional application.

    So, I agree that my argument is based on practical reasons. That’s the same basis on which the government censors pornographic speech. So, having ‘practical’ reasons for censoring pornographic speech but not violent speech is entirely consistent with the government’s reasons for censoring pornographic speech in the first place.

    I can tell that’s a bit convoluted. My apologies. I’m hurrying at the moment.

  • WebMonk

    Cin, the entire legal reasoning surrounding pornography is based on practicality and not principle. At best one could say it’s based on ‘community principle’ sort of kind of. The statement “but the state still has the prerogative to censor [pornography]” is not a constitutional argument.

    The censoring of pornography is completely based on practical application/reason and not on constitutional arguments. The government has the constitutional ability to censor some types of speech, but their decisions about which types of speech to censor is more based on practical reasoning than on direct constitutional application.

    So, I agree that my argument is based on practical reasons. That’s the same basis on which the government censors pornographic speech. So, having ‘practical’ reasons for censoring pornographic speech but not violent speech is entirely consistent with the government’s reasons for censoring pornographic speech in the first place.

    I can tell that’s a bit convoluted. My apologies. I’m hurrying at the moment.

  • Joe

    I would recommend the dissent my Justice Thomas. He does an excellent job of analyzing the original understanding of the First Amendment as to the right of one to speak to a minor without going through the parent and the right of a minor to access speech without parental consent. he concludes that the founders/ratifiers could not have envisioned the First Amendment to include such a right.

    http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf

    Scalia (writer of the majority opinion) gives Thomas’s analysis some acknowledgement in a footnote and ultimately states that had the law been fashioned such that a parent could tell the video game seller not to sell to his/her kid – the law would not violate the First Amendment. In other words, he holds that the state can’t prevent a minor for buying without consent of the parent but that the state could enforce a parent’s choice to prevent their child from buying the games.

    So, all you need to do to create a law that is constitutional is redraft it. Create a database where parents can sign up saying – don’t sell to my kids. Then require that stores access the list prior to selling to any minor. If the kid is on the list – no sale.

  • Joe

    I would recommend the dissent my Justice Thomas. He does an excellent job of analyzing the original understanding of the First Amendment as to the right of one to speak to a minor without going through the parent and the right of a minor to access speech without parental consent. he concludes that the founders/ratifiers could not have envisioned the First Amendment to include such a right.

    http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf

    Scalia (writer of the majority opinion) gives Thomas’s analysis some acknowledgement in a footnote and ultimately states that had the law been fashioned such that a parent could tell the video game seller not to sell to his/her kid – the law would not violate the First Amendment. In other words, he holds that the state can’t prevent a minor for buying without consent of the parent but that the state could enforce a parent’s choice to prevent their child from buying the games.

    So, all you need to do to create a law that is constitutional is redraft it. Create a database where parents can sign up saying – don’t sell to my kids. Then require that stores access the list prior to selling to any minor. If the kid is on the list – no sale.

  • Joe

    DR.L21C – “Arcades still exist?” – Here and there. As of a couple of years ago, the Gold Mine at Port Plaza Mall in downtown Green Bay is still going – despite the fact that the mall is basically empty.

  • Joe

    DR.L21C – “Arcades still exist?” – Here and there. As of a couple of years ago, the Gold Mine at Port Plaza Mall in downtown Green Bay is still going – despite the fact that the mall is basically empty.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    Joe there is an even easier route. Parents check what their kids are playing. The database would be a nightmare.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    Joe there is an even easier route. Parents check what their kids are playing. The database would be a nightmare.

  • utahrainbow

    Where is the localist type here? What about those ‘states rights’ people? Where are you? I do not understand how one state’s prerogative (as Cincinnatus says) to restrict violent video games to minors violates the U.S. Constitution. How does this actually restrict speech in the way that Constitution meant? To children? Are you kidding me?

  • utahrainbow

    Where is the localist type here? What about those ‘states rights’ people? Where are you? I do not understand how one state’s prerogative (as Cincinnatus says) to restrict violent video games to minors violates the U.S. Constitution. How does this actually restrict speech in the way that Constitution meant? To children? Are you kidding me?

  • utahrainbow

    Thank you, Joe, for pointing that out @ 11. I still do not see why you need to set up a database, though. This seems very within the realm of reasonable governance for an individual state. How about if a minor really wants a violent video game, the parent can go buy it for them. No need for a database.

  • utahrainbow

    Thank you, Joe, for pointing that out @ 11. I still do not see why you need to set up a database, though. This seems very within the realm of reasonable governance for an individual state. How about if a minor really wants a violent video game, the parent can go buy it for them. No need for a database.

  • Cincinnatus

    WebMonk@10: I agree (rather emphatically, actually) in principle with utahrainbow@14, and I think your assessment of the reasoning behind Miller and other pornography jurisprudence is mistaken.

    The constitutionally recognized prerogative to censor pornography is not based upon practical wisdom/reasoning, but upon the constitutional doctrine of reserved state police powers. Implicit in the “vast reserve” of police powers is the right, within bounds, to protect public morality, which is a responsibility the Court has determined to include limiting pornography. Obviously, the incorporation of the First Amendment has severely complicated this claim, but–and this is crucial–Miller is not, I believe, a case about what the government is practically able to do but rather about what the government is allowed to do. Miller does not provide the federal government with the authority to censor pornography; rather, it affirms this power in the reserve of community and state “police powers.” Thus, the Miller test claims that states may censor material that is “pruriently obscene” in accordance with community standards. California’s definition of pornography could be totally different from Wisconsin’s and still withstand constitutional muster. The definition of pornography is a matter of practical wisdom in accordance with local customs and understandings, but recognition of the prerogative to censor pornography is a constitutional matter. This inherently complicated notion of what constitutes pornography doesn’t preclude the Court from noting that it’s still acceptable to legislate against pornography in general.

    So, why can’t the same hold with violent content? Why can’t, say, South Carolina decide that GTA is pruriently offensive and prohibit its sale to minors, regardless of what the degenerates in California decide? And, by this standard, a nationwide “database” of banned material is unnecessary and even inappropriate.

    Note: I am not necessarily advocating the censorship of violent material. If my locality asked me to vote on such a question, I’m not sure what I would answer. But, like Breyer, I can’t see why in principle states and localities shouldn’t be able to limit the sale or availability of material they determine to be unacceptably violent just as they can censor material they determine to be unacceptably sexual.

  • Cincinnatus

    WebMonk@10: I agree (rather emphatically, actually) in principle with utahrainbow@14, and I think your assessment of the reasoning behind Miller and other pornography jurisprudence is mistaken.

    The constitutionally recognized prerogative to censor pornography is not based upon practical wisdom/reasoning, but upon the constitutional doctrine of reserved state police powers. Implicit in the “vast reserve” of police powers is the right, within bounds, to protect public morality, which is a responsibility the Court has determined to include limiting pornography. Obviously, the incorporation of the First Amendment has severely complicated this claim, but–and this is crucial–Miller is not, I believe, a case about what the government is practically able to do but rather about what the government is allowed to do. Miller does not provide the federal government with the authority to censor pornography; rather, it affirms this power in the reserve of community and state “police powers.” Thus, the Miller test claims that states may censor material that is “pruriently obscene” in accordance with community standards. California’s definition of pornography could be totally different from Wisconsin’s and still withstand constitutional muster. The definition of pornography is a matter of practical wisdom in accordance with local customs and understandings, but recognition of the prerogative to censor pornography is a constitutional matter. This inherently complicated notion of what constitutes pornography doesn’t preclude the Court from noting that it’s still acceptable to legislate against pornography in general.

    So, why can’t the same hold with violent content? Why can’t, say, South Carolina decide that GTA is pruriently offensive and prohibit its sale to minors, regardless of what the degenerates in California decide? And, by this standard, a nationwide “database” of banned material is unnecessary and even inappropriate.

    Note: I am not necessarily advocating the censorship of violent material. If my locality asked me to vote on such a question, I’m not sure what I would answer. But, like Breyer, I can’t see why in principle states and localities shouldn’t be able to limit the sale or availability of material they determine to be unacceptably violent just as they can censor material they determine to be unacceptably sexual.

  • Joe

    Cincy – “So, why can’t the same hold with violent content? Why can’t, say, South Carolina decide that GTA is pruriently offensive and prohibit its sale to minors, regardless of what the degenerates in California decide? And, by this standard, a nationwide “database” of banned material is unnecessary and even inappropriate.”

    this is exactly the question the majority answered and the answer is because the founders did not understand the first amendment to NOT apply to violence, whereas they did understand it to NOT apply to obscene material.

    Btw – the database that I think the majority would find to pass muster would not need to be national and could in fact state by state derivations.

    Also, I am not saying a database is a good idea (I generally dislike any gov’t databases and would not sign up for it if it were available) – I am just saying that the court appears to have left a road map for how to get around its own opinion. Wise advocates would follow it.

  • Joe

    Cincy – “So, why can’t the same hold with violent content? Why can’t, say, South Carolina decide that GTA is pruriently offensive and prohibit its sale to minors, regardless of what the degenerates in California decide? And, by this standard, a nationwide “database” of banned material is unnecessary and even inappropriate.”

    this is exactly the question the majority answered and the answer is because the founders did not understand the first amendment to NOT apply to violence, whereas they did understand it to NOT apply to obscene material.

    Btw – the database that I think the majority would find to pass muster would not need to be national and could in fact state by state derivations.

    Also, I am not saying a database is a good idea (I generally dislike any gov’t databases and would not sign up for it if it were available) – I am just saying that the court appears to have left a road map for how to get around its own opinion. Wise advocates would follow it.

  • DonS

    I don’t have a strong objection to the decision itself — just to the consistency of certain justices who voted to strike down this restriction on the sale of violent video games, but also vote frequently to restrict political speech. There is no question that the primary purpose of the free speech clause of the First Amendment was to protect political speech, and yet that is the type of speech most likely to be restrained by law, and those restraints are often upheld. I know that Scalia is consistent on these matters, but Kagan? She, in her role of Solicitor General, was a strong advocate for upholding the McCain-Feingold restrictions in the Citizens United case. How can you reasonably argue that burdensome restrictions on political speech, which burdens that speech and limits the voices heard in our political forums, are constitutional, but it is unconstitutional to restrict the sale of violent video games to minors? I don’t get that at all. That is the free speech clause turned on its head.

  • DonS

    I don’t have a strong objection to the decision itself — just to the consistency of certain justices who voted to strike down this restriction on the sale of violent video games, but also vote frequently to restrict political speech. There is no question that the primary purpose of the free speech clause of the First Amendment was to protect political speech, and yet that is the type of speech most likely to be restrained by law, and those restraints are often upheld. I know that Scalia is consistent on these matters, but Kagan? She, in her role of Solicitor General, was a strong advocate for upholding the McCain-Feingold restrictions in the Citizens United case. How can you reasonably argue that burdensome restrictions on political speech, which burdens that speech and limits the voices heard in our political forums, are constitutional, but it is unconstitutional to restrict the sale of violent video games to minors? I don’t get that at all. That is the free speech clause turned on its head.

  • WebMonk

    I do not understand how one state’s prerogative to restrict violent video games to minors violates the U.S. Constitution. How does this actually restrict speech in the way that Constitution meant?

    utah 14 – you do realize that the 1st amendment applies to states as well, don’t you? The same prohibitions that apply to Congress about restricting free speech also applies to states.* If a video game is ‘speech’ (SC has very firmly ruled it is) then states/localities must receive the same sorts of scrutiny when restricting speech as Congress would.

    Cin – I think you’ve overstated Miller‘s reliance on ‘community standards’ considerably and understated it’s reliance on the practical problems of clearly defining pornography. They saw the problem was untenable and dodged it by kicking it down to localities.

    As Joe briefly mentioned, states and localities are not allowed to censor speech in a way that violates the Constitutional protections, the court saw it was practically impossible to create a universal definition of ‘pornography’ and so passed it to states to create localized definitions – a practicality-based solution, not a principal-based solution.

    You asked what would happen if a state tried to classify violence in a way that put it in the same category as pornography. Joe briefly answered, accurately, that the court has stated that censorship based on pornography is permissible because the founders didn’t consider pornography to be ‘speech’ to be protected under the 1st amendment. So, for a state to censor speech based on violence, they would need to show that violent depictions were something the founders did not consider to be speech.

    Maybe it’s arguable, but I don’t think it’s successfully arguable. They didn’t have TV, computer-generated graphics, or video games, but the burden of proof would be to solidly prove that the founders would not consider it ‘speech’. That’s extremely difficult, and the opposing side can put forward a pretty decent case that violent depiction speech is something the founders were in favor of protecting.

    Pr0n is something that’s pretty easy to show the founders didn’t intend to protect. Violent depictions or violent games – good luck.

    *That’s not 100% true, but it’s definitely close enough for this situation.

  • WebMonk

    I do not understand how one state’s prerogative to restrict violent video games to minors violates the U.S. Constitution. How does this actually restrict speech in the way that Constitution meant?

    utah 14 – you do realize that the 1st amendment applies to states as well, don’t you? The same prohibitions that apply to Congress about restricting free speech also applies to states.* If a video game is ‘speech’ (SC has very firmly ruled it is) then states/localities must receive the same sorts of scrutiny when restricting speech as Congress would.

    Cin – I think you’ve overstated Miller‘s reliance on ‘community standards’ considerably and understated it’s reliance on the practical problems of clearly defining pornography. They saw the problem was untenable and dodged it by kicking it down to localities.

    As Joe briefly mentioned, states and localities are not allowed to censor speech in a way that violates the Constitutional protections, the court saw it was practically impossible to create a universal definition of ‘pornography’ and so passed it to states to create localized definitions – a practicality-based solution, not a principal-based solution.

    You asked what would happen if a state tried to classify violence in a way that put it in the same category as pornography. Joe briefly answered, accurately, that the court has stated that censorship based on pornography is permissible because the founders didn’t consider pornography to be ‘speech’ to be protected under the 1st amendment. So, for a state to censor speech based on violence, they would need to show that violent depictions were something the founders did not consider to be speech.

    Maybe it’s arguable, but I don’t think it’s successfully arguable. They didn’t have TV, computer-generated graphics, or video games, but the burden of proof would be to solidly prove that the founders would not consider it ‘speech’. That’s extremely difficult, and the opposing side can put forward a pretty decent case that violent depiction speech is something the founders were in favor of protecting.

    Pr0n is something that’s pretty easy to show the founders didn’t intend to protect. Violent depictions or violent games – good luck.

    *That’s not 100% true, but it’s definitely close enough for this situation.

  • http://www.toddstadler.com/ tODD

    All quite interesting. At some level, this is a pro-family decision, even if the official forces of American Pro-Family-ness likely won’t see it that way. But this does reinforce the idea that such prohibitions should lie with the parents, and not the government.

    Eric (@1) mentioned the rating system, but it’s not clear whether he realizes that it’s voluntary. That is, there’s nothing illegal about a 12-year-old seeing an R-rated movie by himself. But the studios submit to ratings, and the theaters generally abide by the age limits. Generally.

    Anyhow, the Yahoo! article says that the California law would have prohibited anyone under 18 from buying or renting games that give players the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Really? Doesn’t that seem way too broad to anyone? Read it again. If your video game involves “killing … an image of a human being”, you’d have to be over 18 to play. Um, I don’t play any modern video games, but this rules out any games that deal with war. It rules out a wide swath of games. I’m pretty sure several Atari 2600 games would’ve been ruled 18-and-over by that language!

    Also from that article:

    “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem,” Alito said.

    I’m curious what that “social problem” is, exactly. I obviously haven’t read enough of the details. Are the games disturbing? Yes. As were comic books before them. But do they cause behavioral issues? I remain unaware of any such evidence.

    As to the idea of a database (@11) that would evade the objections raised in this ruling … ha. How, exactly, are you going to require a minor (think: someone under 16) to prove his identity so that he can demonstrate he’s not on the don’t-sell list? Good luck with that.

  • http://www.toddstadler.com/ tODD

    All quite interesting. At some level, this is a pro-family decision, even if the official forces of American Pro-Family-ness likely won’t see it that way. But this does reinforce the idea that such prohibitions should lie with the parents, and not the government.

    Eric (@1) mentioned the rating system, but it’s not clear whether he realizes that it’s voluntary. That is, there’s nothing illegal about a 12-year-old seeing an R-rated movie by himself. But the studios submit to ratings, and the theaters generally abide by the age limits. Generally.

    Anyhow, the Yahoo! article says that the California law would have prohibited anyone under 18 from buying or renting games that give players the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Really? Doesn’t that seem way too broad to anyone? Read it again. If your video game involves “killing … an image of a human being”, you’d have to be over 18 to play. Um, I don’t play any modern video games, but this rules out any games that deal with war. It rules out a wide swath of games. I’m pretty sure several Atari 2600 games would’ve been ruled 18-and-over by that language!

    Also from that article:

    “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem,” Alito said.

    I’m curious what that “social problem” is, exactly. I obviously haven’t read enough of the details. Are the games disturbing? Yes. As were comic books before them. But do they cause behavioral issues? I remain unaware of any such evidence.

    As to the idea of a database (@11) that would evade the objections raised in this ruling … ha. How, exactly, are you going to require a minor (think: someone under 16) to prove his identity so that he can demonstrate he’s not on the don’t-sell list? Good luck with that.

  • Joe

    “How, exactly, are you going to require a minor (think: someone under 16) to prove his identity so that he can demonstrate he’s not on the don’t-sell list? Good luck with that.”

    I think just about every high school in America issues ID cards these days. But my point was the majority is pretty clear that the state’s power can be used to uphold the parents decision to disallow the kid access to certain material. So it is just a matter of finding the mechanism by which to do that.

    This distinction in the opinion (between a state prohibition that the parent could opt-out of versus the use of state power to enforce a parental prohibition) was to me the most interesting part of the majority opinion.

  • Joe

    “How, exactly, are you going to require a minor (think: someone under 16) to prove his identity so that he can demonstrate he’s not on the don’t-sell list? Good luck with that.”

    I think just about every high school in America issues ID cards these days. But my point was the majority is pretty clear that the state’s power can be used to uphold the parents decision to disallow the kid access to certain material. So it is just a matter of finding the mechanism by which to do that.

    This distinction in the opinion (between a state prohibition that the parent could opt-out of versus the use of state power to enforce a parental prohibition) was to me the most interesting part of the majority opinion.

  • utahrainbow

    Webmonk, I understand that the 1st amendment applies to states. I appreciate that, and it is important. But, how is this restriction of speech at all? They are still completely available to the public at large, and even minors are free to consume such speech if their parents (or even anyone over 18) buy it for them. Where is the wisdom in such a decision? I think it a bit overboard on 1st amendment scrutiny.

  • utahrainbow

    Webmonk, I understand that the 1st amendment applies to states. I appreciate that, and it is important. But, how is this restriction of speech at all? They are still completely available to the public at large, and even minors are free to consume such speech if their parents (or even anyone over 18) buy it for them. Where is the wisdom in such a decision? I think it a bit overboard on 1st amendment scrutiny.

  • http://www.toddstadler.com/ tODD

    Joe (@21), are you sure we want to go down that road?

    First off, this will have the somewhat humorous effect of home-schooled children being most easily able to evade the intents of this law and their parents, since they likely won’t have official ID cards. Or, conversely, if the stores enforce a “no school ID, no purchase” policy, then such students wouldn’t have access to something even if their parents okayed it. Which is better?

    And how comfortable are you guys with the government misusing yet another form of ID like this? It’s a school-issued ID, presumably for the purposes of identifying the student in the context of that school. Should the government use that for its own purposes in “helping” parents? If the government does, don’t you think the government will enforce certain standards on those IDs, which they will have to meet (private schools, too, right)? Not to mention the database the government will be maintaining.

    All this to solve … what problem, exactly? See, folks, this is how government-creep happens.

  • http://www.toddstadler.com/ tODD

    Joe (@21), are you sure we want to go down that road?

    First off, this will have the somewhat humorous effect of home-schooled children being most easily able to evade the intents of this law and their parents, since they likely won’t have official ID cards. Or, conversely, if the stores enforce a “no school ID, no purchase” policy, then such students wouldn’t have access to something even if their parents okayed it. Which is better?

    And how comfortable are you guys with the government misusing yet another form of ID like this? It’s a school-issued ID, presumably for the purposes of identifying the student in the context of that school. Should the government use that for its own purposes in “helping” parents? If the government does, don’t you think the government will enforce certain standards on those IDs, which they will have to meet (private schools, too, right)? Not to mention the database the government will be maintaining.

    All this to solve … what problem, exactly? See, folks, this is how government-creep happens.

  • utahrainbow

    I also think, generally speaking, we are okay with prohibitions for minors from BOTH parents and the government. It’s not an either/or question.

    What next? Striking down a law that prevents minors from purchasing firearms because it violates the 2nd amendment? Where is the acknowledgement that children are a special case when we talk of “rights”?

  • utahrainbow

    I also think, generally speaking, we are okay with prohibitions for minors from BOTH parents and the government. It’s not an either/or question.

    What next? Striking down a law that prevents minors from purchasing firearms because it violates the 2nd amendment? Where is the acknowledgement that children are a special case when we talk of “rights”?

  • Joe

    Joe (@21), are you sure we want to go down that road?

    No, I really don’t. Again, I am not advocating any particular action or that any action is actually a good thing. I am just trying to point out that when reduced to its most basic level the opinion is really about logistics.

    On another more fundamental level it is a very good example of when it matters who are the first actors. Scalia’s majority opinion strikes down the law because the gov’t is violating the First Amendment rights of minors BUT he is also acknowledging that it would be completely fine for the state to us its coercive powers to uphold a parents decision to restrict his kids access to certain material. I think this is a fantastically important point. It basically says, you can’t substitute the state into the proper role of the parent. I think it is a great opinion. I also, think that Thomas’s dissent is worth a read because it adds some additional flavor to what the majority did.

  • Joe

    Joe (@21), are you sure we want to go down that road?

    No, I really don’t. Again, I am not advocating any particular action or that any action is actually a good thing. I am just trying to point out that when reduced to its most basic level the opinion is really about logistics.

    On another more fundamental level it is a very good example of when it matters who are the first actors. Scalia’s majority opinion strikes down the law because the gov’t is violating the First Amendment rights of minors BUT he is also acknowledging that it would be completely fine for the state to us its coercive powers to uphold a parents decision to restrict his kids access to certain material. I think this is a fantastically important point. It basically says, you can’t substitute the state into the proper role of the parent. I think it is a great opinion. I also, think that Thomas’s dissent is worth a read because it adds some additional flavor to what the majority did.

  • http://www.toddstadler.com/ tODD

    Joe (@25), that makes things a bit clearer for me, at least to your intent. Thanks.

  • http://www.toddstadler.com/ tODD

    Joe (@25), that makes things a bit clearer for me, at least to your intent. Thanks.

  • Cincinnatus

    WebMonk: I disagree with you, in short. First, Miller wasn’t decided on the basis that the “Founders” would not have regarded pornography as speech. But if that’s your argument, would they have considered violent video games that glorify violence for its own sake (i.e., devoid of a political message) to constitute speech? I’m doubtful. DonS makes a fair point: it’s curious that the Court today gravitates toward limiting and delimiting political speech and what counts as political speech, while other activities–porn, strip clubs, violent games, etc.–are increasingly regarded as untouchable.

    Joe also raises a fair point: do minors actually have a right to free speech? A sort-of serious question.

  • Cincinnatus

    WebMonk: I disagree with you, in short. First, Miller wasn’t decided on the basis that the “Founders” would not have regarded pornography as speech. But if that’s your argument, would they have considered violent video games that glorify violence for its own sake (i.e., devoid of a political message) to constitute speech? I’m doubtful. DonS makes a fair point: it’s curious that the Court today gravitates toward limiting and delimiting political speech and what counts as political speech, while other activities–porn, strip clubs, violent games, etc.–are increasingly regarded as untouchable.

    Joe also raises a fair point: do minors actually have a right to free speech? A sort-of serious question.

  • WebMonk

    Cin, sorry if I was unclear.

    Miller doesn’t decide itself that the Founders didn’t regard pornography as speech. That decision was made in Roth v. US (1957), among several other cases, and Miller specifically listed Roth in its opinion stating that

    “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.”

    Miller doesn’t spell out why obscenity isn’t protected free speech, but it does cite Roth as to why. Roth is the case which specifically spells out that obscenity is not protected speech because the founders didn’t consider it to be protected speech. It lists a number of laws in place at the time and associated with the Founders which specifically banned obscenity. Because these laws were enacted at the same time (give or take a bit) as the BoR, and were put in place by or associated with the Founders, it is pretty clear that the 1st amendment was not intended to protect obscenity.

    You can’t find the same sort of thing involving violence.

    Now, you can say “would they have considered violent video games that glorify violence for its own sake (i.e., devoid of a political message) to constitute speech? I’m doubtful.

    However, unless you can find some solid examples where the Bill of Rights timeframe and Founders-associated laws of the time banned violent speech, you have only your own opinion. You need specific and concrete examples to back up the idea that the Founders did not consider illustrated violence to be protected speech.

    You ain’t gonna find ‘em.

  • WebMonk

    Cin, sorry if I was unclear.

    Miller doesn’t decide itself that the Founders didn’t regard pornography as speech. That decision was made in Roth v. US (1957), among several other cases, and Miller specifically listed Roth in its opinion stating that

    “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.”

    Miller doesn’t spell out why obscenity isn’t protected free speech, but it does cite Roth as to why. Roth is the case which specifically spells out that obscenity is not protected speech because the founders didn’t consider it to be protected speech. It lists a number of laws in place at the time and associated with the Founders which specifically banned obscenity. Because these laws were enacted at the same time (give or take a bit) as the BoR, and were put in place by or associated with the Founders, it is pretty clear that the 1st amendment was not intended to protect obscenity.

    You can’t find the same sort of thing involving violence.

    Now, you can say “would they have considered violent video games that glorify violence for its own sake (i.e., devoid of a political message) to constitute speech? I’m doubtful.

    However, unless you can find some solid examples where the Bill of Rights timeframe and Founders-associated laws of the time banned violent speech, you have only your own opinion. You need specific and concrete examples to back up the idea that the Founders did not consider illustrated violence to be protected speech.

    You ain’t gonna find ‘em.

  • http://enterthevein.wordpress.com J. Dean

    Rearing children correctly reduces the odds of this happening : )

  • http://enterthevein.wordpress.com J. Dean

    Rearing children correctly reduces the odds of this happening : )

  • Pingback: You Have the Right to Remain Violent(2010) | stream hd movies

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