Game over for Childhood? Violent Video Games as First Amendment Speech
Schlafly, Andrew L., Rutgers Computer & Technology Law Journal
Are violent video games protected under the First Amendment right to free speech? The U.S. Supreme Court addressed this issue for the first time during the October 2010 term. (1) In Brown v. Entertainment Merchants Association, the Court held that video games constituted protected First Amendment speech, no matter how violent, and that such games could forever be sold without limitation to children. (2) This decision boosted a highly profitable industry that has already surpassed Hollywood in revenue and influence, producing annual revenues of over sixty-five billion dollars. (3) It is increasingly common for students to drop out of college simply because of video game addiction; (4) millions of people spend an average of forty-five hours per week playing these games. (5) This immense waste of time is not the only problem.
Studies describe harmful effects ranging from health problems to violent behavior. (6) Rewarding points to mentally unstable 13-year-olds in exceedingly violent games, as the children decapitate and perform other gruesome tasks, may be a recipe for otherwise unexplainable outbursts of real violence. In fact, at least one study has shown that many young mass murderers were hooked on violent video games before they committed the actual act. (7)
California, not known for conservative legislation, enacted California Assembly Bill 1179 in 2005 to protect children against exploitation by violent video games, (8) similar to the current protections afforded to children against the direct sale of alcohol, cigarettes, gambling, pornography, and other adult vices. (9) Specifically, the California statute provided that "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor." (10) While the penalty for violating this law was set at a maximum of $1,000, (11) no one was ever fined a dime.
This law struck at the heart of the video game industry because the more violent the games are, the more money the industry makes. (12) Telling the video game industry to curb its violence is like telling the pornography industry to tone down its sex. In response to the legislation, a trade association promptly sued to block enforcement of the California statute, and both the district and appellate courts found the law to be unconstitutional. (13) At issue was whether the First Amendment prevents state legislatures from protecting children against exploitation by increasingly violent images and role-playing games. (14) The Court of Appeals for the Ninth Circuit invalidated the statute on the grounds that the First Amendment fully protects the sale of disturbing and violent video games to children. (15)
Despite a lack of conflict among the circuit courts, the U.S. Supreme Court surprisingly granted certiorari, presumably due to the growing importance of this issue. (16) The Court held the petition for certiorari for months while it decided another free speech case--United States v. Stevens--which concerned a related issue of whether laws could limit the distribution of videos featuring the torture of animals. (17) Such videos, known as "crush videos," display intensely degrading instances of real-life, violent abuse of animals. (18) By an overwhelming 8-to-1 margin, the Court applied the First Amendment to invalidate a federal statute that broadly prohibited the sale of videos displaying the illegal killing, maiming, torturing, or wounding of animals. (19) Within a week the Court then granted certiorari in the violent video game case, Brown v. Entertainment Merchants Association, (20) which was the Court's most time-consuming decision during the October 2010 Term. (21)
Justice Scalia needed three votes from the liberal side of the Court's bench to prevail by a 5-4 margin on the fundamental issue of whether States may regulate the sale of violent video games to children. (22) He patched together an unlikely coalition of Republican-appointed Justice Kennedy with Democratic-appointed Justices Ginsburg, Sotomayor, and Kagan, to hold that there is a First Amendment right to sell these games directly to children. …