Violent Video Games and the Limits of Law

In the violent video game case, Brown v. Entertainment Merchants Ass'n, the majority thought that video games differed only in degree, not kind, from such violent fare as Grimm’s Fairy Tales or Dostoyevsky’s Crime and Punishment. Justice Alito and Justice Breyer, in separate dissents, noted the many ways in which the interactive video experience produces a difference of kind. For example, many games use gesture control, so to murder someone virtually with an axe the game-player must use the chopping motion of the axe murderer. Soon, video games will employ sensory and tactile devices to give the game player the feeling of gore splattering upon them as they split heads and torsos. Nothing is too base for video game makers, observed Justice Alito. Amen. But this is the end result of a culture that has abandoned all non-legal restraints upon behavior. Either we use law to restrain disgusting behavior (and thus create legal precedent that can and will be used to suppress whatever some future government finds unappealing or inconvenient) or we eschew such a dangerous precedent, rally ‘round the First Amendment, and leave the impression that the gross appetites of video game makers and users are morally acceptable. Of course, the equation between constitutional right and moral validity is totally bogus, but in a culture that has jettisoned any pretense of an exogenous morality it is understandable that this category error will occur.

Comments

[Patrick]

I agree these games are disgusting, but I do not share in your conclusion. At the moral level, my reaction was more along the lines of: "Should California be able to assert authority over what kind of media parents let children use in their homes?" Or, "is it right for your government to tell me what my kids can't see?"

Yes, yes, parents can't always control what their children see or do, especially with their friends, blah, blah . . . but how does one get from that fact to the conclusion that the state deserves carte blanche to step in and parent for us?

At the doctrinal level, I have no problem at all with this case; I see this as a content/viewpoint discrimination slam dunk. More interesting to me is how it addressed minors’ constitutional rights. There has been a growing trend in which SCOTUScases note that minors have diminished constitutional protection and then go on to rule as though they had no constitutional protection at all. That type of reasoning does not impress me, and I am pleased that this case did not entertain it.

[Jacqui Lipton]

And in that vein, what did people think of the Thomas opinion?

[Paul Horwitz]

I am curious about your basis for these propositions: 1) That our culture has abandoned all non-legal constraints on behavior; 2) that there is any kind of serious consensus that the gross appetites of video game makers and users are morally acceptable; and 3) that our culture has jettisoned any pretense of an exogenous morality. With respect, all three statements seem to me to be either grossly exaggerated or simply false.

[Bill Turnier]

I do agree with you, Calvin, that we live in a society that tends to overlegalize too many distasteful behaviors and especially to criminalize them. That in part explains why our prisons are overflowing.

On the other hand I am surprised by the failure of the majority to adequately recognize the different human responses generated by the medium employed. I presume that many of the justices never heard of, much less read, Marshall McLuhan. The human response to hot and cool media can vary considerably. One need only compare the acceptability of oil paintings of nudes in museums and movies involving nudity. No one bars the young from the Metrololitan but we do bar them from theatres showing movies with graphis nudity. I imagine that McLuhan, if alive, would have created a "super hot" category of interactive video products that required participants to simulate killing and sexual violence. This is an issue that justices who are of another generation and have had more exeprience with new media will be called upon to resolve.

[Nancy]

I wonder if the Justices play video games, rather than merely watching others play them. If they played them for hours, I wonder if they would notice a change in their thoughts or behavior.

[Patrick]

Nancy, if the Justices did notice changes in their thoughts and behavior after being exposed to the messages in video games, should it change the First Amendment analysis? I hope not. My view is that our elected officials are the last people who should be in charge of regulating messages that affect people's thoughts and behavior.