| But the 7-2 decision
voiding the video game law leaves open serious questions. When should First Amendment
privileges be suspended for the protection of children? Should a modern interpretation
of "obscenity" include violence and
not just sex? At what point will ultra-realistic video games be more akin to
actual violence and less like the fiction of an earlier era?
These are troubling issues, about which the Supreme Court remains conflicted.
When it comes to protecting children, society takes a wide range of prudent
steps - covering everything from voting, to driving, to drinking. Obscenity laws,
too, are different for kids, as affirmed by the 1968 Supreme Court ruling that
upheld limits on access to sexual materials by minors.
But Justice Antonin Scalia, writing the majority opinion in the video game
case, stressed that depiction of violent acts has never been restricted, even
for kids. That may be legally correct, but it is morally flawed.
As Justice Stephen Breyer said in his dissenting opinion, "What sense
does it make to forbid selling to a 13-year-old boy a magazine with an image
of a nude woman, while protecting the 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?"
The Court noted that research on the effects of video games is inconclusive.
But many types of causes and effects are difficult to pin down scientifically,
which is why the debate raged for decades about the dangers of tobacco, and rambles
on today about climate change. Psychologists face a particularly difficult challenge
in evaluating the impact of video gaming because the technology is evolving so
rapidly.
Like the definitions of obscenity, which were so subjective at the time of
the landmark 1968 ruling as to include the term "girlie magazines," a
reasonable evaluation of video violence may hinge more on intuitive reasoning
and community standards than on laboratory results. The fact that the U.S. military
uses video games for certain forms of combat training should provide a clue about
their power.
Here's the crux of the problem, in the very words of Justice Scalia: "Our
cases have been clear that the obscenity exception to the First Amendment does
not cover whatever a legislature finds shocking, but only depictions of 'sexual
conduct.'" That postulate, when children are involved, is shortsighted.
What does it say about society that extreme graphic violence is acceptable
for young people, while sex is obscene?
Justice Samuel Alito voted against the California law despite his concern
that the violence in modern video games "is astounding." He said the
statute was poorly written, giving too broad a definition of objectionable violent
content. However, Alito seemed to suggest that California legislators could draft
a new law spelling out more clearly the narrow range of video violence that should
be off limits to kids. They should.
Alito wisely added, "developing technology may have important societal
implications that will become apparent only with time."
Safeguarding free speech and protecting our children need not be in conflict.
However, waiting for scientific evidence of the "societal implications" about
which Justice Alito warns, is a game that responsible adults cannot afford to
play.
(c) Peter Funt. This column was originally distributed by the Cagle Syndicate.
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