Whether we like it or not, video games have become an undeniable force in our world. Gone (mostly) are the days where I find an afternoon wasted on NBA Jam or Mario Kart, but I also realize that the N64 I purchased in seventh grade with birthday money is unlikely to be the last console I ever buy — after all, I grew up on video games and turned out fine, so why should I refuse my future children the same luxury?

As video games and systems become more sophisticated and money-generating ($20 billion last year alone), there naturally has been a proliferation of patent infringement lawsuits, contract disputes and property acquisitions. Now it seems we can add tort claims to the mix as the makers of the Nintendo Wii continue to battle allegations of defective wristbands that, in conjunction with sweaty palms, have resulted in a number of shattered television screens. But the intersection of video games and constitutional law? According to the Supreme Court this week, that is precisely where we are heading.

Fresh on the heels of the Court’s decision in United States v. Stevens, which held that a federal statute prohibiting the sale or possession of “crush videos” — although well-intentioned — was a violation of the First Amendment (in effect, ruling that videos depicting animal cruelty, as defined by the statute, did not constitute a special class devoid of First Amendment protection), the Court is ready to delve further into the amendment’s role in technology and entertainment next term.

For years, minors have been prohibited access to mature films and magazines depicting sex and nudity, but the statutory and caselaw regarding exposure to violence has been quite limited. Thus, in 2005, California lawmakers attempted to make an impact in this area by declaring it illegal to sell or rent violent video games to minors. Specifically, the law banned distribution of those games that portrayed the “killing, maiming, dismembering or sexually assaulting an image of a human being” to anyone under the age of eighteen. The law never took effect, however, as it was promptly challenged as a violation of the First Amendment.

The district court and the 9th Circuit blocked the law as an infringement on the constitutional rights of minors, and the Supreme Court agreed this week to address the case during its next term. Proponents of the law contend that children should be protected from violence in video games in the same way that they are protected from sex in movies and magazines. The argument has merit as this interest could be considered compelling and the restriction narrowly-tailored to reach only minors. On the other hand, as the recent animal cruelty case demonstrates, the Court is weary of content-based regulations.

There are plenty of other arguments to consider, such as whether a link truly exists between fake and real violence, whether kids can find access to the games anyway, and whether it should be the parents monitoring their children’s playtime rather than the government. The Court will likely address these points when the time comes, and my sense is that the statute will meet the same fate as the crush video prohibition from Stevens. Like the law in that case, the California statute seems to be overly broad, at least as currently constructed. Although current games have much better graphics and storyline capability, with consequently more authentic on-screen blood and guts, I was technically “killing” and “maiming” human being-like characters back when I was playing Gunsmoke as a five-year-old. So it’s likely this statute will not be as narrowly-tailored as the proponents say.

Then again, even if this particular statute fails, the issue is unlikely to go away as quietly as Stevens. This is because unlike animal cruelty films, video games already operate under a rating system, much like movies. So technically, standards do exist for determining which games should be accessible to which children. Acceptance of a statute like California’s, however, would still require the Court to place violent media on a lower level of protection, like pornography. The “I know it when I see it” approach has been cited in Court precedent in regards to obscenity, and maybe when it comes down to violence in video games, the justices will know it when they play it.

Andrew Cunningham

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