Sibby has a piece on the recent 8th Circuit Court of Appeals case, Entertainment Software Association v. Minnesota. Doug Wiken backs Sibby up (one of the seventy signs of the apocalypse). Both are reacting to a post by Phyllis Schlafly.
Minnesota passed a law imposed a $25 fine on minors under 17 renting video games rated "M" or "AO", i.e., adults only. A district court issued an injunction in 2006, and the 8th Circuit has now affirmed that injunction. The Court held that video games are protected speech, even for children. Therefore the State must show a compelling interest in the act, and show that the act was narrowly tailored to achieve that interest (i.e., did the least that it could have done). Says the Court:
Whatever our intuitive (dare we say commonsense) feelings regarding the effect
that the extreme violence portrayed in the above-described video games may well
have upon the psychological well-being of minors, Interactive Video requires us to
hold that, having failed to come forth with incontrovertible proof of a causal
relationship between the exposure to such violence and subsequent psychological
dysfunction, the State has not satisfied its evidentiary burden. The requirement of
such a high level of proof may reflect a refined estrangement from reality, but apply
it we must.
Schlafly et. al. above object that there is plenty of evidence to show that violent video games are harmful to minors. But of course, it is hard to come up with "incontrovertible proof" of anything.
I confess that I have no opinion on the harmful effects of video games, but I am skeptical. Having grown up watching thousands of Nazis dispatched in World War II movies, and various bad guys done in by the Lone Ranger's silver bullets, I have never come close to shooting anyone. I grant that the violence in video games is much more graphic and real than anything I saw as a child, and that there is a danger here. When I first fired a rifle, I was profoundly shocked by the sound and sensation of it. Someone playing video games on a computer with a good sub woofer might be better prepared to make the jump to real violence. Perhaps these games do "desensitize" the player, but I am doubtful that this is a major social problem.
On the other hand, I think the Court was altogether wrong to block the Minnesota law. Video games are not the kind of expressive acts that First Amendment protections were designed for, or at least not in the case of minors. They are examples of a kind of commerce that legislatures should be allowed to make judgment calls about. States allow adults to purchase and consume alcoholic beverages, but not persons under 21. Why 21 and not 20 or 22? States make similar decisions regarding tobacco and pornography. Those are judgment calls, and they are what legislatures, and not courts, should be all about.
This is not to say that minors enjoy no first amendment protection. But religious and political speech, art and poetry, are one kind of thing; Postal 2: Apocalypse Weekend is something else.
In this case that the burden of proof should go the other way. ESA should be required to show that their games are harmless to minors. If they could meet that very high standard, then the law would be revealed to have no rational basis. Otherwise, the Court should defer to the legislature. I disagree with Schlafly and my blogosphere colleagues in so far as I think the harmfulness of the video games should not be a judicial question. But then I am a judicial minimalist. I think courts should avoid judgment calls on matters like this.
Recent Comments