The community received a punch from the Supreme Court this week. The court ruled that the citizens of the California community can’t ban the sale of violent video games to children under 18 years of age without an adult in tow. Therefore all other communities that have or are considering such restrictions must abandon their positions.
The people of California working through their legislature enacted a law that bans the sale of violent video games to anyone under 18 years of age. Research has demonstrated a relationship between children interacting with the violence in video games and aggressive, antisocial behavior. It was enacted to support the rights of parents that may not want their children to engage with the games.
The court ruled, with Justice Anthony Scalia writing the majority opinion, that video games are protected free speech, therefore they can’t be banned. The Supreme Court clearly identified three areas of speech that historically have been restricted, that which is obscene, inciting and fighting words. Scalia said the state of California did not prove that violent video games harm children therefore the court could not carve out another form of restricted speech.
The suit against the people of California was brought by the video game association whose only roll according to its function is to sell product not protect speech. The association for that reason should have no standing to bring the suit. In addition, the self imposed rules that the association encourages its retail members to follow are the same as the law codified. If the law is unconstitutional on free speech grounds, then the rules of the association is also wrong.
This ruling takes a long step away from any practical understanding of the First Amendment. It doesn’t separate commercial and political, educational or religious speech. The videos that California is attempting to restrict are videos that have entertainment value only. It states in the law that if any reasonable person can see no value other than entertainment, the sale of the game can be restricted. It avoids any attempt to restrict those that take a political stand on issues, institutions or politicians. It also states that games can’t be restricted that have educational or religious value. Certainly the founders’ intent was to protect political speech and was not an absolute right to say or express anything. As evidence of that, even Scalia in the majority opinion said that there are at least three restrictions.
On another point, the law doesn’t ban the videos entirely. Those that are 18 years of age or older may purchase the videos. The law recognizes that when an individual reaches the age of majority the individual can act with greater maturity. Full freedom therefore is granted at that age including the right to purchase video games that are violent in nature.
The purchase of violent videos is not a life or death situation. Neither is it a case where the child will be burden with a great weight for a long period of time if the purchase isn’t made. There is no reason the community shouldn’t restrict the purchase of the videos unless allowed by a parent.
At the end of the argument, parental control is what it is all about. The law did not ban the videos but stated that a parent or guardian must approve if purchased by someone under 18.
Justice Clarence Thomas, perhaps the most conservative justice on the Supreme Court and often a political soul mate with Scalia, did not support the majority opinion. It was clear to him that rights are not absolute and that the founders’ never intended for children to have rights beyond what their parents grant. The California law supported those rights by reserving for parents and guardians the right to make the decision to purchase the games for their children.
The Supreme Court made a bad decision in this case. While the research about violent videos causing harm to children may not be as strong as it could, the court didn’t consider the practical aspects of the rights reserved for individuals in the Constitution. No right is absolute and as long as legislatures are not choosing sides in a debate about those rights but applying rules to all equally, there is no reason a community can’t act to protect their children, even if the threat is small.