After 30+ years of presence in America's living rooms, video games are finally being given the recognition the medium deserves. On Monday June 27th, the Supreme Court ruled 7-2 that video games are protected under the First Amendment and deserve the same Freedom of Speech guaranteed to other art forms, such as film, music, and literature. This landmark decision comes during the first year the USA has officially acknowledge the interactive arts as a legitimate form of art, in addition to the announcement from the Smithsonian that it plans to honor video games in an art exhibit in 2012. It has been a great year for gamers, game developers, and the game industry as a whole. The Supreme Court has released a 92-page report defending and explaining their decision, which is summarized and explained below.
On November 2nd, 2010, the Entertainment Merchants Associated, representing the video game industry, publicly disputed the legality of a California bill, which prohibited the sale or rental of violent video games to minors. In addition to prohibiting minors from buying violent video games, the bill would also have required publishers to add an “18” label on all violent video game cases. It was decided on June 27th, 2011, that this California bill was unconstitutional and in violation of the First Amendment. There are multiple reasons why the video game industry won this battle, as opposed to the bill's author, Gov. Edmund Brown of California.
1.) The proposed bill restricted the rights and freedoms granted to children. The Court believes that children and young people should not have thoughts and ideas restricted from them, just because their government sees it as a way of protecting the young people. This would be a form of censorship, which would be robbing children of their right to original thought. The Opinion of the Court states, “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”
2.) The Court is not prone to condoning censorship, as the Court upholds its opinion that various art forms and mediums are protected by the First Amendment. The Court compares the idea of restricting the sale of video games directly to the idea of government-sponsored propaganda. “We have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try,” the Opinion of the Court states. The Court goes on to quote the Winters v. New York verdict, “Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.” Art is constitutionally protected, and the Court believes, “Esthetic and moral judgments about art and literature… are for the individual to make, not for the Government to decree, even with mandate or approval of a majority.”
3.) The proposed bill was based on a purely subjective morality system. The bill called for legal action against violent games, which a “reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.” Going even further, the bill would target games that are “patently offensive to prevailing standards in the community as to what is suitable for minors.” If this “reasonable person” finds the game to “lack serious literary, artistic, political, or scientific value for minors,” then it would be appropriate to prohibit the game, according to the rejected bill. The problem with this (legally) is, the law would be up to interpretation. What is “deviant?” Or “morbid?” Or “offensive?” And for that matter, what makes a person “reasonable?” And is this “reasonable person” up to the task of weighing the aspects of games pertaining to literature, art, politics, and science? The idea of a “reasonable person” is subjective in its own right, as there could be many types of reasonable people, all with differing definitions of the word, “offensive.” Laws should not be up to interpretation, especially when the law is meant to be interpreting an art form.
4.) New types of entertainment and new mediums have long been the scapegoat when trying to explain juvenile behavior. The Court points to dime novels, film, and comic books, which have all been blamed for the rise of “deviant behavior” among minors at one point in time. The Court acknowledges that the interactive aspect of video games differ from the experiences of the previously mentioned entertainment forms, but dismisses the idea that video games have more of an impact than either literature or film. It is all too convenient for The Court to blame the latest entertainment medium, like people did with dime novels and comic books. Especially since there are not any accepted studies that link video game violence to juvenile violence. The Court explains, “The State must specifically identify an 'actual problem' in need of solving and the curtailment of free speech must be actually necessary to the solution.” Since California could not prove the connection between virtual violence and actual violence, there was no reason to prohibit the sales of violent video games to minors.
5.) Lastly, the Court believes that parents, not the government, should be parenting their kids. The rejected bill proposed legislation that catered to parents who supported the bill, but dismissed the silent majority of those who were opposed to it. The Court explains “Not all of the children who are forbidden [by the ESRB] to purchase violent video games on their own have parents who care whether they purchase violent video games.” They go on to say that the bill's “entire effect is only in support of what the State thinks parents ought to want.” To summarize, the Court doesn't think the government should be telling parents how to raise their children.
These are the main reasons why the Supreme Court could not accept the legitimacy of the proposed California bill. Only two Justices dissented the decision, Justice Clarence Thomas and Justice Stephen Breyer, who claimed the rights guaranteed in the Constitution did not apply to minors and also found studies linking video games to violence to be convincing. The remaining seven Justices disagreed though, and delivered a fantastic victory to the medium of video games. The judicial system has decided that our government does not need to play a role in the prohibition or distribution of violent video games. The Court believes that the voluntary rating system of the ESRB is fully capable of regulating content on its own merit and that government interference would be in violation of citizens' First Amendment Rights. After years of controversy, this issue can finally be laid to rest.
