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by Peter Moskos

June 27, 2011

Kill Kill Kill (part 2)

The decision just seems to be just a general free-speech issue. They compare video games to books:
Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.
Just because there's a new media doesn't mean there's a new exception to be carved out of the 1st Amendment. I like our Court in general on 1st-Amendment issues. It's all too rare to see the government limiting the power of the government (unlike, say, in cases involving the 4th Amendment). Here's what I think is the meat of the Court's decision:
We have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York (1948). 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. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” US v. Playboy (2000).
But I still don't understand why nudity is worse than violence. For speech to be banned, it needs to be obscene. But I don't follow this logic:
Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.
Why is violence somehow less obscene than, say, a naked woman?

But the best part of the decision? This attack, in a footnote, directed at the court's worst justice:
JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.
Our point is not, as JUSTICE THOMAS believes, merely that such laws are “undesirable.”... Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority.
This argument is not, as JUSTICE THOMAS asserts, “circular.” It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.
Damn, yo! This is a full-on Supreme Court Smackdown! (And now I gotta look up ipse dixit.) Why didn't Scalia just straight up call Thomas an idiot? Oh, wait, he did.

I also like that Choose-Your-Own-Adventure books are now officially enshrined in constitutional law (I admit: I "turned back." Didn't we all?). Says the Court: "All literature is interactive."

And Scalia, who lives up to his reputation as the liveliest writer on the bench, has one final dis for one those idiotic over-reaching psychological studies:
One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.


Anonymous said...

I believe that equating video games with other forms of entertainment is nonsense, just as the claim that a naked woman twirling around a pole or giving a lap-dance is a form of speech is so ridiculous that only a lawyer can say it with a straight face.

And what are the ideas and social messages communicated by video pool, video darts, video poker, or video pinball? That argument is fatuous, as well.

Video games are fundamentally different from plays, books, movies, etc because they stimulate action, not thought. If it's shown that they provide a release from violent tendencies that might otherwise be acted out, then I'll change my mind; but I doubt that they do. The best argument I know of against that assertion is that the military uses violent video games to overcome soldiers' innate aversion to killing other human beings.

Finally, don't forget that the law restricted sales only to people under 18. Previously, the Court has opined that the free-speech rights of high school kids can be constrained. But apparently they enjoy an absolute right to be customers of corporations whose "free-speech" rights are unfettered.

PCM said...

Video games stimulate action? I thought they stimulating sitting in front of screen and eating doritos. That's been my experience.

The Court long ago decided it didn't want to get in the game of deciding what culture is worthy and what isn't. That is the government can no longer censor books. Now it's just saying the same applies to video games.

As to game/crime link... I'm not saying video games causes the crime drop. But games got more violent and violent crime went down. So you'll be hard pressed to convince me that violence games cause violent crime.

And I do believe that the more kids stay inside to play video games, the less they'll be out causing trouble in the streets.

And keep in mind that this decision has nothing to do with the free speech rights of children. It has to do with the free speech rights of adults.

Anonymous said...

Word, free speech is good.
Like Citizens United, nice to see court affirming that people don't lose their rights to speech when the freely associate.