Violent Video Games
One of the great enigmas of U.S.
culture is that for more than a century so much politicking
and legal contorting has occurred to suppress sexual expression
while extremely violent expression has been much more broadly
accepted. In recent years efforts have grown to shield children
from graphically violent entertainment, and an April 2007
FCC report urged that TV violence be curtailed much like sexual
"indecency." But there is no developed constitutional principle
to allow for government control of violent expression. This
has been illustrated by the many unsuccessful efforts to restrict
violent video games.
In 2005 and 2006 laws limiting minors'
access to video games were invalidated by the courts in several
states — and no such law was upheld. For example, California
passed a statute requiring that violent video games be labeled
and prohibiting their rental or sale to minors. The law defined
a game as violent if the player's options included killing,
maiming, dismembering, or sexually assaulting the image of
a human being and if these actions were done in a patently
offensive or depraved manner.
But in Video
Software Dealers Assn. v. Schwarzenegger a federal
district court in 2005 granted a preliminary injunction against
enforcing the statute. The court concluded that "serious questions
are raised concerning the State's ability to restrict minors'
First Amendment rights in connection with exposure to violent
video games, including the question of whether there is a
causal connection between access to such games and psychological
or other harm to children."
Several other federal district courts
and appellate courts have ruled against similar laws. As far
back as 2001, for instance, a federal Court of Appeals in
American Amusement Machine Assn.
v. Kendrick ruled against a city ordinance, noting
that the city had little or no evidence that violent, interactive
games actually increased aggressive behavior in minors.
The consistent string of court decisions,
one might think, would deter legislatures from continuing
to invest time passing laws that restrict access to violent
video games. But given the highly gruesome content of some
games, there appears to be little political downside to legislating
against them. So these efforts may continue, though it will
be difficult for any legislature to muster sufficiently compelling
evidence to override First Amendment liberty for this brand
of entertainment.
