On Violent Video Games and Strict Constructionism

When the Supreme Court issued their opinion in Brown v. Entertainment Merchants Association on June 27, there was an outcry of despair for the future of America and its youth. How could the Court rule in favor of children having access to violent video games? What the commentators, conservative and otherwise, missed is that they didn’t.

Those who wanted a conservative response from the Court got it and now many of them don’t like it. Let’s summarize what the opinion of the Court, written by Justice Scalia, said:

First, a legislature cannot create new categories of speech unprotected by the First Amendment simply by weighing the value of the new category against its social costs and then prohibit it if it fails the test. Unlike sexual content, there is no American legal tradition of protecting children from violent content. Second, because the California law in question imposes a restriction on the content of protected speech, it is invalid unless the state can demonstrate that it passes the strict scrutiny test. In other words, it has to demonstrate a compelling government interest and has to be narrowly drafted to serve that interest. California said the compelling interest was helping parents who wish to restrict their children’s access to violent videos. Scalia said no, parents can choose what their children watch and the voluntary rating system is there to help them. And stores don’t have to sell the videos to children. Thus, children are already protected.

As might be expected, Scalia strictly construed the First Amendment. If some other form of speech were before the Court, we would be glad that he did. We would be glad that he and the justices in the majority hadn’t created a new legal tradition. The view taken by Justice Alito, concurring in the judgement but not for this reason, and syndicated columnist Cal Thomas, is that the framers of the Constitution could not have anticipated modern technology and so we have to fill in the gaps for them. How many times have conservatives decried that very principle being applied in the past? We want a conservative, strict constructionist court unless it is inconvenient.

As to the second line of argument, Scalia said that if California had a compelling interest in keeping children from watching violence, it would have to outlaw Saturday morning cartoons, which for generations have depicted extreme violence. Likewise, it would have to outlaw violence in movies available to children. However, instead of comprehensively addressing the issue, it simply responded with a knee-jerk reaction to a new distasteful form of depiction.

The decision was 7-2 because even Alito and Chief Justice Roberts recognized that California had not drafted the legislation strictly enough to pass constitutional muster. “For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors.” (Alito concurring in judgment, slip opinion at 6)  California would have had to have been very specific about exactly which kinds of depictions were illegal for minors and then demonstrated the compelling reason to “help” parents with regard to those depictions.

Finally, I need to address some flawed reasoning floating out there in the op/ed columns by writers who are convinced that they are much more in touch with the real world that the justices. For convenience, and since I’ve already linked to him, I’ll use Cal Thomas as an example. Thomas writes:  “Justices should step out of their safety zones and experience life on urban streets where mortal combat is for real and shootings are as commonplace as corrupt politicians. Where do armed teenagers in roving gangs get the idea that life is cheap and can be so easily taken without regard to social mores?” Thomas fails to recognize that gang violence far pre-dates the latest (or even the earliest) round of video games.

In this case, Scalia notes, the State of California tried to use psychological studies that

purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. (slip opinion of the Court at p. 12-13, internal citations omitted, emphasis mine)

Does this mean that disgusting violent video games are good, for children or otherwise? No. Are they offensive to Christian morality in suggesting that life is cheap and disposable? Certainly. However, we don’t use a combination of our disgust and specious arm-chair psychology to cut a chunk out of First Amendment jurisprudence.

The Supreme Court did not rule in favor of children having access to violent games. Rather, it ruled in favor of parents controlling access to violent games.

I will venture to suggest that as a father of nine, Justice Scalia knows a bit about raising children. He also knows a bit about the Constitution. I agree with him that it is better to keep the latter out of the business of the former.

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One Response to On Violent Video Games and Strict Constructionism

  1. Steve Burri says:

    David,
    Glad you’re back on.

    I agree with you here. Parents…

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