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Censorship The Courts United States Games

Court on Video Games: Less Cleavage, More Carnage 397

Posted by Soulskill
from the mario-never-had-a-wardrobe-malfunction dept.
On Monday we discussed news of a Supreme Court ruling which held that violent video games deserved free speech protection under the First Amendment. Now, frequent Slashdot contributor Bennett Haselton writes with this followup that questions the Court's consistency in such matters. "I'm glad the Supreme Court struck down the California law against selling violent video games to minors, but reading over the decision, I had the odd feeling that the arguments by the dissenters made more sense than the majority — mainly because of the hypocrisy of continuing to ban sexuality while giving violence a pass." Read on for the rest of Bennett's thoughts.

John Landis said, "R is when you bare a woman's breast, PG is when you cut it off." That is apparently now also the law of the land regarding video games, according to the Supreme Court's June 27th decision (PDF) overturning a California law that banned sales of violent video games to minors. I'm glad the Supreme Court struck down the law, but reading over the decision, I had the odd feeling that even though I agreed with the majority's conclusion, the actual arguments made by the dissenters made more sense, primarily because of the hypocrisy of the majority in treating sex as more taboo than violence.

The majority opinion, written by Scalia, has already been widely quoted as a ringing defense of free speech:

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny..."

But Scalia continues to believe that the government does have the right to ban the sale of nudity and sexuality to minors (as decided in the Supreme Court's 1968 Ginsberg v. New York decision), just not violence. So he kept qualifying statements like the one above by adding "except for pornography", like a judicial version of the fortune cookie "in bed" game:

"[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content... There are of course exceptions. These limited areas, such as obscenity... represent well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."
...
"Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

So he's continuing the Supreme Court's tradition of carving out of a First Amendment exception for sex, but won't make one for gratuitous violence. I would be against banning either type of content, but if I were forced to ban one of the two, I would definitely pick violence. Wouldn't you?

As Steven Breyer wrote in his dissent:

"But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman -- bound, gagged, tortured, and killed -- is also topless?"

Well, he's right, isn't he? Except he misses the point that perhaps the remedy is not to ban violent video games, but to overturn the precedent that photos of topless women are harmful.

Alito seemed to agree with Breyer, when he wrote in a decision joined by Roberts:

"Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy... The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women."

(Alito was technically not dissenting, because he agreed that the current law was impermissibly vague, but filed a separate opinion because he was at pains to emphasize that he thought some future law against violent video games might be constitutional.) The implication seems clear: "If we can ban some things for minors — like pornography — then good God, can't we ban this stuff too?"

Scalia, in his majority opinion, responds to Alito's description of game violence: "Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression." But this is just hypocritical — because Scalia, throughout his own decision, kept deferring to the Ginsberg Supreme Court ruling, which said that the government could ban porn sales to minors if it depicted sex acts in way that the "average person" would consider "patently offensive with respect to what is suitable for minors" (along with some other criteria). In other words, if it causes disgust.

Breyer and Alito also made similar arguments to each other on another reasonable-sounding point — that industry self-regulation might not last long, now that the law has been struck down. As Alito wrote:

"The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7-10, a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired — or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished."

Breyer agreed:

"And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today's broad ruling reduces the industry's incentive to police itself."

This sounds more realistic than Scalia's recitation of the video game industry party line:

"The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games... This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home."

What do you want to bet that Breyer and Alito are right, and enforcement of the rating system will decline now?

Compare this with another case, when Communications Decency Act of 1996 (essentially banning the "seven dirty words" on the Internet) was struck down in 1997 at least in part because a "less restrictive means" existed for censoring content in the home — parental blocking software. I didn't like blocking software much, but as a statement of fact, it existed, and was a less restrictive means than the law. The crucial difference there was that parents who used blocking software, weren't using it in response to a government threat of legislation, they were using it because they wanted to, and didn't stop using it after the law was struck down. There's no reason to think the same is true for industry self-applied video game ratings.

Finally, Breyer (but not Alito) rejected the argument that the California law should be struck down for vagueness, arguing that it was no more vague than laws against selling pornography minors, which the court had upheld:

"Comparing the language of California's statute (set forth supra, at 1-2) with the language of New York's statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words "kill," "maim," and "dismember" any more difficult to understand than the word "nudity?" ... California only departed from the Miller formulation [the Supreme Court case that defined obscenity] in two significant respects: It substituted the word "deviant" for the words "prurient" and "shameful," and it three times added the words "for minors." The word "deviant" differs from "prurient" and "shameful," but it would seem no less suited to defining and narrowing the reach of the statute."

Well, I think he's right. They're all just words, and they don't have crystal clear boundaries, but you pretty much know what they mean, and there's no reason why one group of words is more vague than the other. (In fact, in a 2008 article I argued that you could measure scientifically the vagueness of a law — just show the law to different test subjects, along with some made-up scenarios, and ask whether those scenarios violated the law or not. I'm quite confident that if you applied that test to these two different laws, you would measure about the same level of "vagueness".)

Again, I don't accept the justices' premise that the government has any business banning the sale of either sexual or violent content. But if you're going to grant the premise that they can and should, then Alito and/or Breyer seem to have made better arguments than the majority on at least those three points: That violence probably deserves less constitutional protection than sex, that the industry isn't likely to keep regulating itself if they no longer think they have to, and there's no reason that "kill" and "maim" are any more vague than "nudity".

(By the way, when I say the "dissenters sounded more reasonable", I am not including Clarence Thomas, whose entire solo dissent was devoted to research showing that the Founding Fathers did not believe people under 18 had First Amendment rights at all. If Clarence Thomas thought really hard, could he think of any other category of people who were denied full civil rights in the 1700s, and hence why we wouldn't want to apply that standard today?)

Fortunately, the majority did get the most important point right, which is that studies do not show a causal relationship between video game playing and real-life acts of violence. As Scalia wrote:

"The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies 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, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." Video Software Dealers Assn. 556 F. 3d, at 964. 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."

Unfortunately, Scalia lacked the nerve to say that this point should have been the only point that mattered, in a society where freedom is the default unless there's a good reason to the contrary. Because the logical consequence of that, would have been that since the "evidence" for the harmful effects of pornography is even weaker, then the government has no business banning that, either.

The problem constraining all nine justices is that they felt bound by the prior Ginsberg ruling making it permissible to ban sales of pornography to minors, so their options were limited to (a) striking down the video game law while ignoring the hypocrisy of continuing to ban pornography, or (b) pointing out that violent video games are probably at least as distasteful. This ignores the possibility that they could have just (c) overturned their prior ruling, as they have done many times before.

If I were a justice writing for the majority, my whole opinion would be:

Well, we can only make an exception to the First Amendment if there's solid evidence of real harm, and there is no scientifically valid evidence of harm here, so the law violates the First Amendment and is struck down. Oh, and that goes for Ginsberg too, next time it comes up. How much did you guys pay for law school again?

Unfortunately, Obama has said that he's looking for Supreme Court candidates that display "empathy", and what I said would probably hurt the other justices' feelings, so don't hold your breath for my being nominated.

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Court on Video Games: Less Cleavage, More Carnage

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  • by milbournosphere (1273186) on Friday July 01, 2011 @12:26PM (#36634756)
    And it all started with the Hays codes in the 1930s. Get your religion-based censorship out of my TV and radio broadcasts already.
  • by Anonymous Coward on Friday July 01, 2011 @12:28PM (#36634778)

    I thought a major part of the decision was that other forms of entertainment are not similarly restricted. Violence in films and TV are not subject to the same sort of law, and the decision was based on that discrepancy in the restriction of speech. However, those forms of media are restricted when it comes to sexual content, so a similar restriction can be applied to video games. This is of course separate from whether or not it *should* be applied to any of them. Isn't that the job of parenting?

    Anyway, it seems as though the court was trying to just align the law with current precedent, and clarify that video games are speech like other formats, instead of getting into a major brouhaha over the issue restricting sexual content in any media which is outside of the scope of this case.

  • by fantomas (94850) on Friday July 01, 2011 @12:32PM (#36634808)

    American citizens have a long and well publicised record of being shocked and upset by seeing the human body, while being more relaxed about exposing their children to acts of simulated violence. Guns ok, bare bodies not ok.

    When Janet Jackson showed a nipple in a show on prime time tv at the superbowl, the USA took to the streets and threatened to riot for this shameful behaviour that would damage their kids for life. Over in Europe, people laughed: you can see posters of half naked people on billboards selling perfume and the like on the way to the shops, no big deal. Sometimes models are completely naked in posters [adland.tv]. Europeans are more worried about exposing their children to violence.

    Different places, different cultures. Violence is ok in the USA, sex is ok in Europe. You take your choice and live where you feel comfortable I suppose...

  • life goals (Score:5, Insightful)

    by Ephemeriis (315124) on Friday July 01, 2011 @12:38PM (#36634872)

    I used to work at EB, and I always thought it was sadly funny when some parent would get offended at some very crude/pixelated nudity... But be perfectly OK with wholesale slaughter.

    Seriously.

    Most people, at some point in their lives, see a naked body. Most people have sex. That's generally considered to be a good thing. Aren't parents stereotypically bugging their children for grandkids after they get married?

    Most people, on the other hand, try to avoid getting dismembered with a chainsaw.

    And yet... According to the way we rate our media... Chainsaw dismemberment is apparently more acceptable.

  • by Skarecrow77 (1714214) on Friday July 01, 2011 @12:44PM (#36634948)

    It will sort itself out.

    America is still, to this day, trying to shake off centuries of puritan tradition. But we're doing it. Each generation is a bit more socially sane than the last one.

    we gave all colors of skin and then both sexes the right to vote. we then struck down institutionalized racism (as much as possible) and followed up by changing social attitudes towards race (Again, as much as possible. it's a slow process, gotta wait for old racists to die off). We are slowly giving people of all sexual orientations the right to legally marry anybody they so choose, and while we're at it we're slowly allowing people to legally fuck in any way they so choose as long as it's consentual (you'd be amazed at what's still on the books out there). Talks are in progress about how we, as a society, can make sure as few people are fucked over by health care as possible, while at the same time -finally- opening up discussions on how to decriminalize posession and use of recreational drugs while assisting addicts with recovery instead of imprisoning them.

    Example. it's a sign of progress that when a year or two ago some southern judge refused to issue a marriage license a white woman and a black man, it is viewed with outrage across the country instead of "why is this news". We're working on changing things, we're working on it.

    I'm sure that my grandchildren will look at me and say "you guys were still doing WHAT to -insert social group here- in your day? Wow what were you thinking?" and they'll probably be right.

  • by Xtifr (1323) on Friday July 01, 2011 @12:51PM (#36635016) Homepage

    No matter what you think about sex vs violence, that isn't what this case was about. This case was about whether there should be special rules for video games! If California had simply passed a law against selling depictions of gratuitous violence to children, that would have been a whole different matter (and an unlikely law in the land of Hollywood). Do we really need special, separate rules for each new medium? I don't think so. Consistency is the thing! The Supremes considered the question of whether video games needed separate rules, and concluded that there was no evidence they did. If you don't like violence in media, petition for a ban on violence in media, not violence in video games!

  • by Xtifr (1323) on Friday July 01, 2011 @01:01PM (#36635152) Homepage

    The Constitution also has no exceptions to the freedom of religion thing, yet we seem to feel free to ban human sacrifice, slavery, polygamy, and spousal abuse, no matter how sincere the religious feelings behind them may be. Damn activist judges suggesting that rules against murder trump the Constitution! :)

  • by cpu6502 (1960974) on Friday July 01, 2011 @01:16PM (#36635380)

    Great photo. It summarizes with zero words the hypocrisy of our culture:
    - Vibrator == bad, dirty, outlawed to be shown on tv.
    - Assault rifle == okay, and shown on primetime.

    In reality they should BOTH be allowed in our arts. It's free speech and neither should be any more "censored" than the other.

  • by divisionbyzero (300681) on Friday July 01, 2011 @01:17PM (#36635384)

    where *obscene* violence is more acceptable than completely *normal* sexuality. It's beyond me. WTF?

  • by LordLimecat (1103839) on Friday July 01, 2011 @01:24PM (#36635504)

    Clarence Thomas is closer to the truth than you are. For starters, there ARE no 1st amendment rights, only protections-- the First Amendment does NOT say that you have a right to say certain things or to gather in certain places, but only that Congress shall not restrict it. The 14th amendment enshrines certain of those protections at the state level as well, though which apply to the states is always contentious (see DC's handgun laws).

    Further, SCOTUS has ruled in the past that students in a schools-- even public schools-- may be prevented from speaking their mind because the school is at that point seen as an extension of the parent's authority.

    The irony of Clarence Thomas' argument is that I agree with a lot of what he was saying-- basically, that parents need to parent. I disagree with the conclusion that he landed on, which is that we need the state to help the parents along the way; but this is less an issue (to my mind) of protecting the child's rights to do something and more an issue of what restrictions are being placed on the parent's rights.

  • by Xaedalus (1192463) <Xaedalys.yahoo@com> on Friday July 01, 2011 @01:30PM (#36635596)

    How can the designers of Mortal Kombat justify ripping Sonya in half like that? What was the goddamn point? To prove that they could? To take it to the extreme? That disgusted me. That flat-out disgusted me. I see John's point in playing that. Whatever line there was, the designers of MK stepped over it with that Fatality

    I'm all for freedom of speech. I don't see what the point of that Fatality was. Who are we appeasing there, sadists? Do we really have that many sadists in the marketing demographic for that age-range? Did someone hold a fucking focus group full of 14-25 year old males and someone said: "I want to see a girl get ripped in half, starting from her vagina upward, lingering with her face still contorting in pain, and then have that come off as well!"

    How the fuck can we claim with a straight face that we can defend THAT Fatality by lumping it into the same category as pornography? To answer my own question: by finding people willing to come forward and say that they believe in torture and sadism as expressed rhetorically by a given artistic medium. Someone out there was gratified by that scene. I want to know who. I want to who the fuck was visually gratified by that exact Fatality, and I want them to explain WHY to me. Explain WHY you were gratified, and what point you feel that scene made, and I will be able to defend that game's right to First Amendment protection with a straight face. I want to know what the designers were thinking, and why they designed it. Because if we can't come up with a good reason, then we have to fall back on the whole "Well, if you're going to protect porn, you'll have to protect this" defense. And let me tell you, GENTLEMEN, that defense holds only as long as you can keep society convinced of it. And society isn't just made up of gamers, it's also made up of concerned parents who aren't gamers, women who may not enjoy seeing a virtual woman get split in half, Christians, Muslims, Atheists, and a whole lotta people who'll look at that and think "Hmm... maybe I should elect a politician who'll pass a law to ban that".

  • by Skarecrow77 (1714214) on Friday July 01, 2011 @01:32PM (#36635614)

    we then struck down institutionalized racism

    No we didn't; we just hide it better now. In black communities in America, it is common for 1 out of every 5 men to be imprisoned -- in some cases, the proportion is as high as 1 out of every 3. That is right now, in 2011.

    Are you entirely sure that is due to hidden racism, and not at all to do with a self-perpetuating "racial" (more self-enforced social grouping in my experience) culture of gang-related crime-glorified peer pressure, music, and environment?

    Or are you suggestion a bunch of racist good ole boys sat around one day saying "Well, we can't hang the black man no more, so we'll give him some rap music talking about 'OG', distribute some blue and red bandanas, and they'll give us every excuse in the world to lock them up and legally beat the shit out of them"? I'm really not sure that's the way it worked.

    Anecdotally, I know way more than 5 black men, and not a single one to my knowledge has ever been to prison. My friends are the exceptions? Granted, they were suburban kids, not urban ones. Racism only exists in the cities?

  • by betterunixthanunix (980855) on Friday July 01, 2011 @01:40PM (#36635732)
    Actually, it is mainly because of the war on drugs -- black men are routinely arrested for selling and possessing marijuana, cocaine, and PCP. It is true that white people could also theoretically be targeted, but the enforcement tends to be heavier in black areas, and the penalty for crack (which is the popular form of cocaine in black communities) is much higher than the penalty for powder cocaine.

    As for the racist motivations of the war on drugs, that is a historical fact. Congress was told that marijuana caused white women to want to have sex with black men. Congress was told that black men who used cocaine became lunatics, with improved accuracy with a pistol and a desire to rape white women. Congress was told that crack cocaine was a black man's drug.

    As for your suburban friends, they are indeed an exception; the dozen or so black men you know do not constitute a statistically significant sample.
  • by Skarecrow77 (1714214) on Friday July 01, 2011 @01:56PM (#36635870)

    Well in retrospect, those arguments sound ridiculous, so with our slow social sanity improvements, hopefully we can see some of them rectified in our lifetime.

    As for enforcement, I would argue that's probably a crime density issue. There are just places where drug transactions take place, and due to the illegal nature of drugs, a lot of other types of crime seem to show up as well. My wife tells me that in her youth, the the town two or three towns over from her was well known for it's drug trade, and if you were a "white kid" there after dark, the cops knew that you were there to buy drugs, which as it turns out was generally true. They were patrolling the areas of known crime, and surprise surprise, they found crime.

    I think what you're missing here is a matter of racial inequality that may not necessarily be indicative of racism. Densely packed areas of poverty stricken, poorly educated, people tend to be boilerpots for crime. That seems to be true almost no matter what "race" we're talking about. The problem here is that due to past racism, certain social groups tend to be stuck in these self-perpetuating hellholes. it isn't that these young black men aren't committing crimes, it's that they're stuck in a situation that encourages it. THAT is the problem. there aren't magical racists behind the scenes keeping them down. They really are doing this stuff. The key is to figure out a way to break the cycle, not complain that they're locked up.

    Look at the worst examples of trailer parks, and you going to see the same thing. it just isn't as glorified in the media because no rap singers are talking about their doublewide and popping a cap in their neighbor's lawn flamingo. You can be sure the cops are there on a regular basis however. Crime.

  • by Intrepid imaginaut (1970940) on Friday July 01, 2011 @02:08PM (#36635994)

    How are those free speech zones coming for you? Neither Indiana Jones nor 24 is banned in any European country by the way, so you're basically talking out your ass.

  • by captjc (453680) on Friday July 01, 2011 @03:27PM (#36636714)

    That was why he showed it, because of the huge double-standard involved. This is extremely distasteful and he even warned the audience that they will find it extremely distasteful as well. The joke wasn't the clip itself. The joke was that that particular clip is legal in a video game sold for minors while even the slightest show of a nipple would get it banned.

  • No rights (Score:5, Insightful)

    by JBMcB (73720) on Friday July 01, 2011 @03:29PM (#36636722)

    Um, what are the first ten amendments to the constitution called again? Bill of... something....

  • by ZombieBraintrust (1685608) on Friday July 01, 2011 @03:48PM (#36636900)
    You don't know what the word hypocrisy means. A person is not hypocritical when their choices are different from the ones you would make. They are hypocritical when their choices are different from prior choices they have made.
  • continue it, but base it on income, not race

    the real reason for the economic disparity between whites and blacks in the usa is because of economics, and that IS a historical hangover from institutional, governmental, and ad hoc societal favoritism towards WHITES since, well, since before this country was founded

    in fact, affirmative action should exist forever, but again, based on income, not race. there is no reason why a rich black son should get preferential treatment over a poor white son, but there IS a reason for a poor child, of any race, to get preferential treatment over a rich child, of any race

    simply because without the counteracting force of government policy, nepotism and cronyism will inevitably concentrate power and wealth with a few. governmental policy HAS to counteract this, in any society, for all time. or injustice, based on economic class, inevitably develops

    a true meritocracy is NOT the default status of human society. money INEVITABLY concentrates power, which leads to cronyism and nepotism: the useless son of the rich guy getting the good high ranking job, rather than the guy who busted his ass for 20 years in the company and who really deserves

    therefore, society MUST counteract nepotism and croyism and favoritism based on class, wealth, and family connections by promoting poor but brilliant children to the front of the line, forever. the free market does not sovle this problem, it CREATES this problem

    a free market will DESTROY a true meritocracy based society because of cronyism and nepotism

    that is, belief in a self-regulating society, and belief in a meritocracy, are mutually exclusive beliefs. to believe in meritocracy, you must believe in government regulation and programs LIKE affirmative action (but not EXACTLY like affirmative action), and you must understand that a self-regulating society will inevitbly lead to a regimented stratified calss based society where power and wealth concentrate with a few: money attracts more money, and that's the way it's always been. a just society MUST constantly counteract this natural gravity

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