WASHINGTON, June 30, 2011 — The conservative majority in the United States Supreme Court may, in its recent ruling on video games, have gone too far down the path of strict adherence to the framers' original intent.
In a 7-2 decision written by Justice Antonin Scalia, the court struck down a California law banning the purchase by children of violent video games. The court upheld a 9th Circuit Court of Appeals decision throwing out the ban on sale or rental of these games to minors, writing that governments do not have the power to "restrict the ideas to which children may be exposed," regardless of the amount of grotesque violence.
Scalia wrote for the majority in Brown v. Entertainment Merchants Association that children are not traditionally shielded from violence as they are from sexual conduct. He also stated that archaic texts and stories, such as Hansel and Gretel, Cinderella, Snow White and other popular fairy tales and stories depict violence as well, but we wouldn’t think of limiting children’s access to those.
"Certainly the books we give children to read - or read to them when they are younger - contain no shortage of gore," wrote Scalia. In building a case for protecting the rights of children to purchase games that simulate decapitation, violent murder and gruesome stabbings, the senior justice actually elevated violent video games to the standard of art.
“Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world),” Scalia wrote. “That suffices to confer First Amendment protection."
Associate Justices Antonin Scalia and Clarence Thomas weren't on the same side this time.
He called the California law “seriously over-inclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime."
The case is a win for the $20 billion dollar video-game industry. Approximately 46 million American households had at least one video-game system in their homes in 2010.
Some say the case opens up a Pandora’s box, creating a slippery slope for the court to remove many restrictions on products harmful to children. Certainly, the argument has been made that the Court’s interpretation of the law would make it possible even for the purchase of dangerous weapons by children to be protected.
The case was interesting for who sided with whom. Justice Clarence Thomas, who usually sides with Scalia, split from him this time. Thomas wrote in his dissent that he would have retained the ban. His logic was that parents have had a historic right to protect their children, and the law helped them to do that.
“The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children … In the decades leading up to and following the Revolution, the conception of the child’s mind evolved but the duty and authority of parents remained,” Thomas wrote. “Teachers and schools came under scrutiny, and children’s reading material was carefully supervised…Laws reflected these concerns and often supported parental authority with the coercive power of the state.”
Thomas' position was separate from that of the other dissenter, Justice Stephen Breyer. The two are ideological polar opposites. In his separate dissent, Breyer wrote that, "The First Amendment does not disable government from helping parents make such a choice here — a choice not to have their children buy extremely violent, interactive games."
Breyer cited numerous studies linking violent video games to aggression in children. Surveys of 8th and 9th grade students in the Journal of Adolescence have found a correlation between playing violent video games and aggression. He also noted that, “cutting-edge neuroscience has shown that 'virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.'" He went on to quote the Meta-Analytical Review , which "concluded that exposure to violent video games ‘was positively associated with aggressive behavior, aggressive cognition, and aggressive affect,’ and that ‘playing violent video games is a causal risk factor for long-term harmful outcomes.’”
More liberal justices are considered more activist, meaning they view the Constitution as a living document and interpret its words to fit and conform to changes in society. More conservative justices adhere to the concept of “judicial restraint,” which in principle precludes the use of personal experiences, biases, or other external knowledge or factors unrelated to the case presented in its ruling. Conservatives are more likely to rule under “strict constructionist” principles, meaning they apply the law as closely to the original framers' intent as possible.
The current court, which by a 5-4 majority is considered conservative, certainly overreached in this case. Scalia’s opinion overreaches in its inference that violent video games are akin to art. Thomas is correct that, while it is the parents' job to control which games their children play, the government has a role in assisting parents. Children will be children and will sneak off to do forbidden things, as they do all the time.
The Court took a wrong position in this case because the framers of the Constitution could not envision a world where children as young as 6 or 7 would be able to walk into shops without their parents' consent and buy virtual weapons they could use to simulate murder.
Justice Breyer said it best: “This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their government.”
It was shortsighted and unfortunate to not interpret the Constitution as a living document and adjust it to a situation the framers never imagined. Too bad the other justices did not agree.
Read more Politics of Raising Children in The Communities at the Washington Times. Follow Jeneba Ghatt at @JenebaSpeaks. Her work can also be read at JenebaSpeaksm BlackWeb 2.0 and Politic365. She also co-hosts a Blog Talk Radio show called Right of Black which tackles current events and politics from a perspective not often seen in the mainstream media.
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