The U.S. Supreme Court delivered a huge blow to parents and families in a recent case, Brown v. EMA, which deals with extremely violent video games. Although billions of dollars are spent on advertising every year,2 proving beyond a reasonable doubt that what we watch influences our behavior, the Court stubbornly clung to the fallacy that extremely violent video games have very little effect on our children.
The in-game advertising industry alone is expected to grow to $1 billion by the year 2014 and, aware of its influence, even President Obama took out ads during his 2008 presidential campaign within the game Burnout Paradise to remind voters in swing states to register to vote.3 The election’s result proves the president knew what he was doing.
Responsible parents know instinctively that watching extreme violence is not good for their children. That is why they try to shield them at young ages from movies and television shows that children are not yet ready to process.
Science confirms those instincts. Indeed, many social scientists have demonstrated the causal relationship between violent video games and anti-social behavior.4 That research was enough to prompt the California legislature to restrict the sale or rental of extremely violent video games that fall within a specified three-prong test.5
But in this 7-2 decision holding the law to be unconstitutional, the U.S. Supreme Court rejected parents’ common sense and scientific evidence.
The Court’s reasoning, however, doesn’t hold water. First, although video games are arguably a mere “product,” the majority held that the video games medium now stands on the same First Amendment constitutional footing as other traditionally protected forms of “speech,” such as books and movies. Second, the Court essentially held that this First Amendment “right” applies to developing minors to the same degree as informed adults. In a world becoming increasingly hostile to parental rights, this is indeed a slippery slope setting a very dangerous precedent.
Since freedom of speech is a “fundamental right,” California needed to overcome the “strict scrutiny” test. Under this harsh test, there must be (1) a compelling government interest (goals), and (2) the law must be “narrowly tailored” to achieve these goals. If a law does not meet this standard, it will be struck down.
While some have praised the majority’s ruling as having elevated the rights of parents above the mandates of state bureaucrats, the opposite is true. This law did not trample parental rights; it actually protected them. This is not a case where the state is totally banning something or forcing its will upon a child. Children could still obtain these games, but only under parental supervision.
If anything, the California law enhanced parental authority by placing the rights – eroded by technology and a 21st century workplace, among other things – back in the hands of parents. This was not only the reasonable thing to do, but also the responsible thing to do, in light of the fact that (1) 70 percent of 13- to 16-year-olds were able to buy mature-rated video games, (2) 5.3 million grade school children of working adults are routinely left home alone, and (3) YouTube videos are easily accessible to teach children how to get around parental controls (ex., “How to bypass parental controls on the Xbox 360,” which has been watched more than 47,000 times6).
We are not talking about “Jeopardy” or “Wheel of Fortune” games. We are talking about morbidly violent, grotesque video games that many would argue have no place in society at all. In fact, in his dissenting opinion, Justice Stephen Breyer states, “It will often be easy to pick out cases at which California’s statute directly aims, involving, say, a character who shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head.”7 Justice Breyer also noted he could not find any “less restrictive” alternative to the law that would be “at least as effective” given the harmful statistics.8 But the majority ignored that, holding the statute was not narrow enough to survive strict scrutiny.
In his dissent, Justice Clarence Thomas raised another important point looking at the original meaning of the First Amendment and noting that, within the First Amendment protections, there was never a right to speak to minors “without going through the minors’ parents or guardians.”9
Additionally, Breyer highlighted the incoherency of the Court making an exception to First Amendment rights on the case of obscene material (which they already do because of the material’s harmful effect on children), while refusing to apply the same logic in the case of extreme violence: “[W]hat 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?”10
Concerned Women for America (CWA) is equally puzzled and wary of this dangerous precedent. As CWA’s Chief Executive Officer, Penny Nance, said, “Our culture will surely continue to feel the disastrous effects of this decision for years to come.”11
Sheila Willamowski is Concerned Women for America’s 2011 Blackstone Fellow Intern.
- Brown v. Entertainment Merchants Association, 564 U.S. __, p. 14 (2011) (Alito, J., dissenting).
- Barry Zellen, “Emerging Markets Drive Global Advertising Market Growth Past $400B,” Enterprise Innovator, October 26, 2005, available at http://enterpriseinnovator.com/index.php?articleID=5660§ionID=269.
- “In-Game Advertising,” Entertainment Software Association, 29 June 2011, available at http://www.theesa.com/gamesindailylife/advertising.asp.
- Brown, 564 U.S. __, at 20-31. (Breyer, J., dissenting).
- Id. at 1.
- Id.at 18 (Breyer, J., dissenting) (citing http://www.youtube.com/watch?v=CFlVfVmvN6k).
- Id. at 6-7 (noting “footage of one such game in the record”).
- Id. at 17.
- Id. at 1 (Thomas, J., dissenting).
- Id. at 18-19 (Breyer, J., dissenting).
- Nance on High Court Striking Down Violent Video Games Law, Concerned Women for America, June 27, 2011, available at https://concernedwomen.org/content.asp?id=20404.