THE SUPREME COURT has decreed that the government is on solid ground when it bans the sale of “girlie” magazines to a minor but tramples on the Constitution when it tries to block that minor from buying a violent video game in which he can (virtually) mutilate and murder a realistic depiction of a woman.
The distinction makes no sense — in the real or the virtual world.
Monday’s decision came in the case of a California law that sought to ban stores from renting or selling violent video games to youths under the age of 18 unless they received parental approval. The law labels a game as violent if it appeals to a “deviant or morbid interest of minors,” lacks “serious literary, artistic, political, or scientific value for minors,” and allows minors to “inflict serious injury” that is “especially heinous, cruel, or depraved.” This language comes directly from previous Supreme Court decisions involving prohibitions against the sale of pornography to underage youth.
Justice Antonin Scalia, writing for the majority, concluded that California failed to articulate a “compelling” state interest for the legislation because of uncertainty over whether children are actually harmed by playing such games. He also found that the law constituted a novel and unconstitutional “restriction on content,” noting that the country has a long tradition of shielding children from sexual — but not violent — content.
A key precedent in the case involved a ruling from last term that struck down a law that criminalized depictions of animal cruelty. That law made it a crime for anyone to produce, buy or sell such things as “crush” videos, where small animals are tortured or killed for the sexual gratification of viewers. We agreed with the court in that case: Even this kind of reprehensible “speech” is entitled to First Amendment protection; the government, by and large, should not be in the business of telling adults what kinds of videos they may view.
The California law is different because it dealt only with reasonable limitations on minors’ access to extremely violent games that even the video game industry acknowledges are inappropriate. The rights of minors are often justifiably curtailed in ways that would violate the Constitution if applied to adults. Take, for example, prohibitions against selling alcohol and tobacco products to juveniles. The California law did nothing to infringe on the rights of adults to purchase violent video games, and manufacturers remained free to create and market these videos. They could even sell them to minors — as long as a parent or legal guardian approved.
Because the court has set a high bar for future government attempts to limit sales to children, the onus is on the video game industry to ensure compliance with its voluntary rating system. When California enacted its law, the Federal Trade Commission reported that some 70 percent of minors between the ages of 13 and 16 were able to buy violent video games rated “M” for “mature.” The industry — wisely and in an effort to ward off further regulation — has done a commendable job since then in beefing up enforcement, but an FTC update shows that some 20 percent of minors are still able to buy age-inappropriate games. The industry must surely be breathing a sigh of relief after the court’s ruling, but the diminished threat of government intervention should in no way impede efforts to keep the most violent games out of the hands of children.