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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 Hatta (162192) on Friday July 01, 2011 @11:29AM (#36634786) Journal

    There is no obscenity exemption in the Constitution. I've looked. The Supreme Court invented the obscenity exemption. Only Congress is supposed to have the power to create law, and they may only modify the Constitution after ratification by the states. The Miller test hasn't passed any of these hurdles so it is quite plainly unconstitutional.

    This is an absolutely crystal clear case of activist judges legislating from the bench.

  • by ViableDreams (1753312) on Friday July 01, 2011 @11:58AM (#36635108)

    Yes, but it's a long, slow process. Not helped along when some of those "social groups" seem to just not get it (refer also to California's prop 8 vote).

    FTA: "[...]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?)"

  • by Anonymous Coward on Friday July 01, 2011 @12:10PM (#36635302)

    But the first amendment pretty much explicitely says "$FOOBAR is OK, period". If SCOTUS then goes and says "$FOOBAR is only OK under certain circumstances", that's not "interpreting the law", it's going against what the constitution quite plainly says. "Congress shall make no law abridging the freedom of speech" is clear the way it's written.

    It's true that the world is changing and that the founding father's didn't anticipate and couldn't have anticipated everything. And it's true that while they wrote the bill of rights to be as broad as possible, they didn't manage to cover every base.

    On the other hand, you're lumping in different things. "the government shall not retrieve emails from a server" is a pretty straightforward applications of people being secure in their papers, for instance, and both that and interracial marriage (gay marriage, last I checked, was not actually recognized except for in a handful of individual states!) are, if anything, extensions of the rights of the people, and as such are covered by the 9th (again, if they're not already covered by the 4th etc., anyway). This is vastly different from the federal government claiming new rights for itself by default.

    And it's even more different from the federal government restricting existing rights. Sorry, but the 1st amendment really is clear. It says you have freedom of speech (philosophically speaking, not necessarily practically). If SCOTUS interprets that to mean that you don't have freedom of speech in this or that case that the government doesn't like, then SCOTUS is wrong.

  • by claytongulick (725397) on Friday July 01, 2011 @12:49PM (#36635818) Homepage

    I live in Texas, where it is not abnormal for people to go to church on Sunday hung over from the night at the strip club on Saturday.

    In Dallas, we have some of the best and most famous strip clubs in the world, and we also have more churches per capita that most other areas.

    Is this hypocrisy? Undoubtedly. However, I think there's are major cultural undercurrents that the rest of the world, and in the case of Texas, the rest of the country misses. I've lived all over the US, and interestingly (to me) I've found Texas to be the least judgmental and most accepting of any place I've lived, including many "liberal" places like California (San Diego) and Oregon (Portland).

    This probably challenges a lot of closely held beliefs by a lot of people in the US and around the world, and I get that. But the fact is, I live in a "conservative" small town in Texas, and when I'm done work today I'm going to go have a beer at the local red-neck bar, a cool little place that is filled with simple folks, has Big Buck Hunter tournaments, and plays country/western non-stop. A bar that's owned by an amazing lesbian couple, and had a flamboyantly gay cook for years. And everyone in my town loves the place, the owners and the cook.

    A lot of folks (as I was, at first) are really put off by this kind of hypocrisy. Why not just loosen up, and drop the pretense? Why pretend to be a good, church-going Christian, when you have no problem dropping a grand in a strip club, or doing all kinds of other wild things?

    What I've come to realize, after living in Texas for several years, is that it is all about manners. In Texas, we don't like to offend folks, we keep our private business private, and it is no one's business what happens behind closed doors. I think the perceived hypocrisy of the porn v/s guns debate has a lot to do with this mentality, and I think this is a sentiment that shared (to various degrees) around the US.

    Folks here don't want personal business put out in public, and nudity is considered very personal business here. Guns, however aren't at all. One of our favorite pastimes is going to the shooting range, or out to the ranch, and putting a couple hundred rounds into targets.

    Many around the world are mystified by this kind of mentality, and I understand that - it's a huge cultural difference, but the thing that's important to realize is that while it is very different here, it isn't bad. In fact, Texas is the most amazing place I've lived in my life. I love it here, I love the people here, and I've learned a lot about being a gentleman and proper manners since I've moved here - things that really don't get much attention in some other parts of the US (like where I grew up).

    It is easy to point a finger and criticize us, when you don't have any understanding of our culture, and from an outside perspective, it must seem confusing. But honestly, would you do the same thing to monks in Tibet? Or tribes in Africa? No, you'd respect that they have a vastly different culture - one that works for them, and you'd respect that (most likely).

    I would request the same consideration from you and others for the US (and from others in the US for Texas). The reason I think it is so hard for people to do this is because (on the surface) western cultures are so similar. It is easy for us to look at Native Americans and identify the vast cultural differences, but not quite so much with Europe/US. It is important to realize, however, that those differences really are there, and the cultural gap is just as vast.

    For those who are interested in learning a little bit more (good and bad) about how things work in Texas, I recommend the movie "The Best Little Whorehouse In Texas". Aside from being a great movie, it is based on real events, and (in my experience) is pretty spot on with the way people are in Texas. I can't speak to several other of the "conservative" states, because I haven't lived in them all, but I suspect that they have pretty similar attitudes (though I know there are some extreme exceptions).

  • by NoZart (961808) on Friday July 01, 2011 @01:38PM (#36636296)

    Because people having sex spend way less money than people waging wars.

  • LateArthurDent, thank you for your calm, and insightful post. I appreciate it.

    Unfortunately there was no WHOOSH, my post was entirely serious and emotionally-based. You bring up valid, logical points. You are right: after some retrospection, I must conclude that I am not for free speech, I am for free speech with restrictions, based on my emotional outburst. You are also right that that I don't have the right to stop people from engaging in free speech.

    In addition, you're right that the proper response is to tell parents and everyone else that doesn't like it that they need to supervise their children, and ensure they don't play the game.

    LateArthurDent, your entire response is logical. To me, from a logical, rational viewpoint, it's a pitch-perfect explanation. The problem is that although I recognize and admit your logic is correct and your defense is rationally, emotionally, I don't care and I don't want to be logical about this because my emotional response is too strong. And given time to think about it and consider the logical, rational response you have given, I find that I still do not want to give any recognition to the logical, rational response and defense presented. I am that offended by what MK did. And herein is the problem that I was trying (albeit imperfectly) to point out in my OP.

    Please understand, I recognize and appreciate your response. I am telling you that I am so offended by what MK did that even though I recognize the validity of your defense, I'm actively, purposely choosing to ignore it because my beliefs and my emotional well-being were violated by witnessing that. I'm pretty sure there's a couple million more people like me who would say the same thing: agree with your defense, don't care anyway.

    To me, the flaw in your argument is that you argue presuming the Constitution and the Free Speech Amendment are sacrosanct. What I believe you are forgetting is that We The People do not serve the Constitution, The Constitution serves us. We, The People, are the ultimate authority in our land. The Constitution is just the rulebook that we all agree to play by, and the Government is the apparatus we create and elect to be our referee. You must therefore understand that if a substantial supermajority or even majority of people get ticked off about something, they have the right to make it Law, and not only that, but Constitutionally-appropriate Law. And if you get enough people ticked off enough to create a social-paradigm change, then suddenly that immutable logically correct Principle which underlays the First Amendment doesn't look so immutable. The First Amendment is only as strong as the social consensus behind it is. Get enough people ticked off, and you'll see some Constitutionally, People-approved limits placed on it.

    This is why I'm demanding to know what the hell the MK designers were thinking. That Fatality offended me on a deep, visceral level, to a degree strong enough that I don't give a flying fuck about what Logic and Reason say I should be responding. I want a damn good explanation/justification for why that was created. And if there isn't one, then I will find myself saying "Fuck the First Amendment, Fuck Reason, Fuck Logic, I want that shit canned and those designers fired because that was Blasphemy to me".

  • by C0R1D4N (970153) on Friday July 01, 2011 @02:05PM (#36636522)
    If Jon Stewart found it so offensive, he probably shouldn't have played it on his TV-14 rated television show.
  • by tnk1 (899206) on Friday July 01, 2011 @02:17PM (#36636624)

    I find the whole sex vs. violence argument to completely miss the point.

    Whether or not depicting violence is worse, it doesn't mean that you have to get rid of violence before you take care of depictions of sex.

    Second, the fact that a depiction of violence is somehow "worse" than that of sex is actually debatable. Sure, violence can be traumatic to watch and you certainly wouldn't want anyone emulating it, but how much of a chance is there that someone actually will? Look at teens today. What is the chance of your kid being the perpetrator or victim of a murder as opposed to becoming a teen parent? One would argue that the threat of unplanned pregnancy in minors is a much more prevalent issue.

    Further, in many violent games, there is often a sense that you are fighting and doing your best against a foe that requires overwhelming force and violence to combat. Sometimes, there is a great deal of respect shown for the enemy or at least their capabilities. If you turn to games where the depiction of sex or even credible sexual tension is common, you often find objectification to be the norm, even when the object is actually one of your allies. When you look at gore in a video game, as time has progressed, you actually start getting more and more a view of the reality of what happens when you dice someone up. When you look at depictions of females, you just keep seeing them refine the realistic bounce of their ample bosoms.

    For that matter, sex is actually prone to becoming boring in a game. Sure, it is visually arresting when done right, and tension between the different gendered characters will lend interest and even some realism to a plot, but just how interactive is it? I almost don't even see the point of talking about depictions of sex in a topic that revolves around video gaming.

    Now, I'm not arguing that sex is worse than violence. I don't believe that in the slightest, but I also think there is more to the argument than there is some weird Puritan dynamic going on here. And I don't think you are going to get very far by pointing at something else and saying "that's worse!" The Supremes used a standard to write their majority opinion based on existing law and precedent and I think that was probably the best way to protect the free speech rights of game developers.

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