Video Games Win in California Court, But They Could Be Back

Video games have always been the target of “concerned” adults who believed that games caused damage to children. From obesity to violent behaviour, video games have been blamed for a lot. And of course, every time some campaign against video games gets enough people, they go to court. With flimsy arguments and scientific reports with no actual science behind them, video games have always come out on top in the end. Today was no different.

The Supreme Court of the United States struck down a California law that would prohibit the selling of violent video games to anyone under the age of 18 with a 7-2 majority.

The decision of the court, written by Justice Antonin Scalia, said the proposed law infringed on video games’ First Amendment rights.

“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). That suffices to confer First Amendment protection.”

The court also said that the act was underinclusive. If violence in video games is damaging to minors, then why isn’t the act going after other forms of media as well?

“Banning violent games would have necessitated bans elsewhere. 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.”

Of course, there were also dissenters. The two justices who voted for the bill, Justices Clarence Thomas and Stephen Breyer, wrote their own opinions.

Thomas argued that the law did not infringe on games’ First Amendment rights because the First Amendment does not include the right to speak to minors or the right for minors to hear that speech without their parent or legal guardian present. He believes that “[t]he founding generation would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.” He goes on for another 17 pages about the attitudes of parents towards their children and whacking off to the founding generation.

Breyer went a different route. For the first third of his dissent, he essentially compared violent video games to child pornography. He said, “No one  here argues that depictions of violence, even extreme violence,  automatically fall outside the First Amendment’s protective scope as, for example, do obscenity and depictions of child pornography.”

He also cited a few of those bogus studies I mentioned above, claiming that violent video games cause harm to children.

“When the  military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose.  But California argues that when the teaching features of video games are put to less desirable ends, harm can ensue.  In particular, extremely violent games can harm  children by  rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.  And video games can cause more harm in this respect than can typically passive media, such as books or films or television programs.”

Breyer says that “Cutting-edge neuroscience has  shown that ‘virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior,'” and that studies of the bogus studies “have concluded that exposure to violent video games ‘was positively associated with aggressive behavior, aggressive cognition, and aggressive affect,” and that “playing violent video games is a causal risk factor for long-term harmful outcomes.”

But these were not the only arguments for the act. Even two of the justices in the majority, Justice Samuel Alito and Chief Justice John Roberts, thought that the act could have passed if it had been worded better. Alito believes that video games are a new kind of medium that may not deserve the same rights as older mediums.

“We should make every effort to understand the new technology. We should take into account the possibility that developing new technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.” Alito went on to say, “There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”

Alito added to this point with a very illustrative argument comparing reading a book and playing a game.

“To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.”

Just as an aside: If video games could have blood splatter feedback, that would be kinda awesome. I know that makes me sound a little sick, but just saying.

Alito also propped the door open for anyone else who thinks they can take video games on.

“I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the State or by the Federal Government, we can consider the constitutionality of the laws when cases challenging them are presented to us.”

A victory for us and challenge to the “concerned.” In a few years, maybe sooner, another person will through the gauntlet at the feet of games. Will we continue to succeed? Only time will tell. But for now, kick up your feet and keep gaming. For today, we are victorious.