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Commentary

Why Nine Court Defeats Haven't Stopped States From Trying to Restrict "Violent" Video Games

By Marjorie Heins

The August 6, 2007 decision by U.S. District Judge Ronald Whyte striking down California's video game censorship law was the ninth such ruling by a federal court in the past six years. Yet state and local legislators continue to press for laws restricting minors' access to games with "violence," "inappropriate violence," "ultra violence," or whatever other term they hope will ban the games they think harmful.

According to the website Game Censorship.com, Delaware, Indiana, Kansas, New York, North Carolina, and Utah are currently considering legislation restricting minors' access to games with violent content.1 The nine states or localities whose laws have been struck down include (in addition to California) Indianapolis, St. Louis, Michigan, Washington, Illinois, Louisiana, Minnesota, and Oklahoma.2

Why do lawmakers continue to press for censorship of video games despite the clear unconstitutionality of the enterprise? The answer probably lies in the long history of media-violence politics, a history that goes back more than a century, to an era when concerns that crime and detective magazines would corrupt urban youth first led to laws banning stories of "bloodshed, lust, or crime." The concern resurfaced in the 1930s, once movies captured the national imagination, and again in the 1950s when television became our dominant mass medium, while crime-and-adventure comics were accused of causing juvenile delinquency. In the 1960s, 70s, and 80s, the government liberally funded researchers who sought to prove harmful effects from gunslinger shows and other televised violence, and politicians as well as the researchers often misrepresented the dubious results of their experiments.3

Fast forward to 2000, when four professional associations issued a "Joint Statement" asserting that "well over 1000 studies point overwhelmingly to a causal connection between media violence and aggressive behavior in some children." The Statement was so rife with errors that it was difficult to understand how these groups - which included the American Medical Association (the AMA) - could have endorsed it.4

Dr. Edward Hill, chair-elect of the AMA, shed some light on this question the following year during a panel discussion. Responding to questions about the Joint Statement, Dr. Hill explained that it was the AMA's desire for health education funding that drove its support of the Joint Statement. The AMA is "sometimes used by the politicians. We try to balance that because we try to use them also, so it's a contest. There were political reasons for signing on. We're looking for a champion in Congress that will be willing to back our desire for funding for comprehensive school health in this country."5

By the late 1990s, violent video games were stirring new concerns. Their interactivity, some critics said, increased the risk of imitative behavior. Psychologist Craig Anderson became a prominent spokesman for this view; among his experimental findings were that subjects who had played violent games in a laboratory administered slightly longer "noise blasts" than a control group. They also recognized "aggressive words" slightly more quickly. (The difference was in fractions of a second.) Anderson posited that recognizing aggressive words reflects aggressive thoughts, and that aggressive thoughts lead to aggressive behavior.6

Anderson's research may have been squishy, but several states and localities relied on it between 2000 and 2006 in passing laws to restrict minors' access to video games. St. Louis's ordinance, for example, criminalized selling, renting, or otherwise making available to minors any "graphically violent" video game, or permitting free play of such a game without the consent of a parent or guardian. The St. Louis County Council, before passing the law, heard testimony from Anderson that playing violent games for 10 to 15 minutes causes "aggressive behavior" and "that children have more aggressive thoughts and frequently more aggressive behavior after playing violent video games."7

A federal district court relied on these statements in upholding the law, but the Court of Appeals reversed, finding the County's conclusions to be "simply unsupported in the record." Anderson's "vague generality" about aggressive thoughts and behavior, the judges said, "falls far short of a showing that video games are psychologically deleterious," and other testimony was equally "ambiguous, inconclusive, or irrelevant."8

The judges in the St. Louis case cited a decision from a sister court, striking down Indianapolis's ordinance. In that case, the court observed that from Grimm's fairy tales to horror movies and epic poems, violent themes have been part of children's literature; to shield them from the subject "would not only be quixotic, but deforming."9 Neither Anderson's "aggressive word" and "noise blast" experiments nor any other evidence before the court showed that video games "have ever caused anyone to commit a violent act," or "have caused the average level of violence to increase anywhere."10

In the Illinois case, the judge was particularly skeptical of expert witness testimony from Anderson and another psychologist, William Kronenberger. The judge noted that Anderson had acknowledged exaggerating the significance of studies that simply show a correlation between aggression and video game play (rather than a causative relationship); that the longer noise blasts his subjects gave after playing violent games were "a matter of milliseconds"; and that he had manipulated the data and methodology in his "meta-analyses." More credible, the court found, were the plaintiffs' experts, who testified that Anderson "not only had failed to cite any peer-reviewed studies that had shown a definitive causal link between violent video game play and aggression, but had also ignored research that reached conflicting conclusions." The judge was equally unsparing in his dissection of Dr. Kronenberger's testimony that studies of adolescent brain activity point to harm from violent video games.11

None of this means, of course, that some violent media might not sometimes reinforce violent attitudes in some people, or even, occasionally, contribute to violent behavior. A lack of proof in court is simply that - a lack of proof. It doesn't mean that the contrary has been proven. Certainly, there are isolated instances of direct imitation, and certainly, the sadistic or misogynistic ideas found in some games are disturbing. As the court decisions suggest, though, it's impossible to define what kind of violent images are harmful (just as it's impossible to pinpoint or quantify violent entertainment's possibly positive effects in relieving tension or processing aggressive feelings in a safe way).

The California law was typical in its (unsuccessful) attempt to craft a definition of "violent video game" that wouldn't be so broad as to encompass the universe of historical, sports, fantasy, sci-fi, action/adventure, knights-in-armor, simulated battlefield, or classic literature games. The definition had two parts: it banned distribution to minors of games that either (1) enable players to inflict virtual injury "in a manner which is especially heinous, cruel, or depraved," or that (2) "appeal to a deviant or morbid interest of minors," are "patently offensive to prevailing standards in the community as to what is suitable for minors," and "lack serious literary, artistic, political, or scientific value for minors."

That latter definition was borrowed from the familiar three-part test that courts have used to condemn sexual material that's deemed "obscene" or "harmful to minors." But as Judge Whyte explained, violent expression is generally protected by the First Amendment unless the government can show a "compelling" reason for its suppression; "obscene" sexual expression is not. As for the alternative definition ("heinous, cruel, or depraved"), he pointed out that it "has no exception for material with some redeeming value and is therefore too broad. The definition could literally apply to some classic literature if put in the form of a video game."12

Despite the impossibility of drafting a video game censorship law that wouldn't be unconstitutionally vague and overbroad, politics will likely continue to drive this debate - at least until health professionals, legislators, and other policymakers agree to unite behind programs of media literacy education and genuine violence reduction rather than attacking entertainment and expression. Action-hero-turned-Governor Arnold Schwarzenegger, the defendant in the California case, would be an ideal candidate to lead such an initiative.

August 15, 2007

Update: The Ninth Circuit Court of Appeals ruled in the California case that the state had failed to prove its claim that violent video games cause psychological or neurological harm to minors. It found that the state's reliance on a study by Professor Craig Anderson was undermined by Anderson's own disclaimers and his abandonment of an effort to to link presumed psychological harm to the age of his subjects. Video Software Dealers Ass'n v. Schwarzenegger. By this point, the state had acknowledged that the part of its law targeting "especially heinous, cruel, or depraved" game content was unconstitutionally overbroad.

In April 2010, the Supreme Court granted review; in November, it heard oral argument. On June 27, 2011 the Supreme Court struck down the California law. Antonin Scalia wrote for a majority of five justices that politicians cannot create new exceptions to the First Amendment based on the unproven assumption that the harm from certain content in entertainment outweighs the benefit. But a troubling concurring opinion by Justices Alito and Roberts, and a dissent by Thomas and Breyer, may invite censors to keep trying. See Requiem for California's Video Game Law for a complete commentary.

1. Several other states have passed or are considering a variety of warning-label requirements, which are less constitutionally problematic. A number of bills have also been pushed in the U.S. Congress. See Game Censorship.com.

2. See Video Software Dealers Ass'n v. Schwarzenegger, No. C-05-04188 RMW (Aug. 6, 2007), affirmed, No. 07-16620 (9th Cir. 2009), preliminary injunction decision at 401 F. Supp. 2d 1034 (N.D. Cal. 2005); Entertainment Software Ass'n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005), affirmed, 469 F.3d 641 (7th Cir. 2006); Entertainment Merchants Ass'n v. Henry, 2006 U.S. Dist. LEXIS 74186 (W.D.Okla. 2006); Entertainment Software Ass'n v. Foti, 451 F. Supp. 2d 823 (M.D. La. 2006); Entertainment Software Ass'n v. Granholm, 426 F. Supp. 2d 646 (E.D. Mich. 2006); Entertainment Software Ass'n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006); Video Software Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004); Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003); American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001).

3. For the historical background, see Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (2001, 2007), pp. 47-55, 98, 233-53.

4. American Academy of Pediatrics, American Psychological Ass'n, American Medical Association, American Academy of Child & Adolescent Psychology, Joint Statement on the Impact of Television Violence on Children, July 26, 2000, www.aap.org/advocacy/releases/jstmtevc.htm.

5. See the author's Letter to Dr. Hill asking whether, in view of his statements, the AMA would reconsider its position. A tape recording of the Dr. Hill's remarks (at a panel discussion in New York City sponsored by the Freedom Forum on May 1, 2001) is in the author's files.

6. Craig Anderson & Karen Dill, "Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and in Life," 78(4) Journal of Personality & Social Psych. 772 (2000).

7. Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003); see also Brief Amici Curiae of 33 Media Scholars (8th Cir. Sept. 24, 2002) (quoting Anderson's testimony before the St. Louis County Council).

8. Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d at 959. The court in this case also had before it a Brief Amici Curiae of 33 Media Scholars debunking claims of scientifically proven harm. For other sources on the "effects" research, see Jonathan Freedman, Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence (2002); Karen Sternheimer, It's Not the Media: The Truth About Pop Culture's Influence on Children (2003); Gerard Jones, Killing Monsters: Why Children NEED Fantasy, Super-Heroes, and Make-Believe Violence (2002); Free Expression Policy Project, Fact Sheet on Media Violence.

9. American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 577-79 (7th Cir. 2001).

10. Id., 579-80.

11. Entertainment Software Ass'n v. Blagojevich, 404 F. Supp. 2d at 1058-67.

12. Video Software Dealers Ass'n v. Schwarzenegger, No. C-05-04188 RMW (Aug. 6, 2007), slip opinion at 13.

 


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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