5/04/2005

 

Video-Game Bill Would Do Violence To First Amendment

By John Hrabe
Fearful that new publishing technology would undermine the Catholic Church, Pope Paul IV created the Index of Prohibited Books expressly forbidding individuals from reading blasphemous books. Although centuries have passed since the Index, its Luddite fear thrives in contemporary video game censorship.
Today, the Assembly Arts and Entertainment Committee will review a bill by Assemblyman Leland Yee, D-San Francisco, that would restrict minors' access to certain ``ultra'' violent video games. Although well-intended, Yee's bill represents the scariest approach to unwanted expression. AB 450 not only violates the First Amendment, but also dangerously conflates violence with obscenity.
Video games have made significant advancements since the days of ``Pong'' and ``Frogger.'' With those advancements, anti-violence advocates claim that expression standards must adapt. But, the First Amendment was designed to protect such technological innovations. When our founders debated the adoption of the First Amendment, every attempt to weaken the amendment was soundly defeated. Consequently, new technologies like radio, television and the Internet have all been recognized as protected means of expression.
A more persuasive medium?
Additionally, the claim that video games are more persuasive than other technologies is patently false. Art and literature engage the audience just as much as a video game. Orson Wells' ``War of the Worlds'' broadcast caused people to believe martians had invaded a town. Television and movies were thought to put viewers into a trance. At their core, video games are nothing more than stories expressing an author's ideas.
No different than the murderous plots of Shakespeare, video games tell stories that engage the audience. With some video-game scripts longer than movie scripts, video games have elaborate sets, plots, and even actors. Video games, such as in the James Bond series, take the audience through each scene of a film. Or, in the case of the ``Final Fantasy,'' ``Tomb Raider,'' and ``Mortal Kombat,'' video games have actually spawned full-length feature films.
Because video games have literary value and tell stories, the Supreme Court has ruled that the strict scrutiny standard must be applied when regulating content. Under this standard, the government must demonstrate a compelling interest in regulating speech. The Supreme Court has never found that limiting children's access to violence is a compelling interest.
Obviously, children are restricted from pornographic and obscene material. Yet, the obscenity standard is not based merely on something being offensive. In Miller vs. California, the Supreme Court ruled that the material must appeal to prurient interests. The court has based this standard on substantiated evidence that sexual material is harmful to children.
Under no circumstances does violence meet this obscenity standard, or justify conflating obscenity with violence. While advocates claim that video-game users are more aggressive, no causal data exists to show that video games cause violent behavior.
A disturbing precedent
Even more disturbing than the lack of casual data is the precedent that such a standard would set. The greatest works of art and literature would now be subject to the same standard. Under this new violence standard, everything from Shakespeare to the Bible could be censored because of its violent content.
In addition to violence being protected speech, the Supreme Court has ruled that children have First Amendment rights. In both Erznoznik vs. City of Jacksonville and Tinker vs. Des Moines Independent School District, the Supreme Court ruled that the First Amendment is not exclusive to adults. Young people need access to information in order to form reasoned opinions.
Lower courts have already soundly rejected violent video-game restrictions, and the Assembly Arts and Entertainment Committee should follow their lead. In American Amusement Machine Association vs. Kendrick, the United States 7th District Court of Appeals summed up the importance of young people understanding violence: ``People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.''
Technological advancements are not an excuse to restrict expression. Among the authors banned by the Index were John Locke, Thomas Hobbes, and John Stuart Mill. Not coincidentally, our founding fathers referenced those same philosophers when constructing our First Amendment. While ``Grand Theft Auto'' and ``Mortal Kombat'' do not rival the works of Locke or Mill, the First Amendment makes no distinction when protecting them.
JOHN HRABE is president of the California Legislative Institute, a non-partisan public policy think tank. He wrote this article for the Mercury News.





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