Since When Is Playing Grand Theft Auto an Expression of Free Speech?
By David H. Landon
Last week the United States Supreme Court considered the issue of whether a California law which prohibits the sale of violent video games to minors was constitutional. Oral arguments were made before the Court in Schwarzenegger v. EMA and a decision will be issued by the Court prior to the summer recess.
The case can be boiled down to the following three questions: 1.) Is competing in a violent video game a form of free speech for First Amendment purposes: 2.) If competing in a violent video game is not speech but rather simply conduct, can the constitutionality of the statute be upheld under the rational basis standard; and 3.) If competing in a violent video game is found to be a form of free speech rather than conduct, does a state law designed to protect minors from the potential harm of exposure to violent video games serve a “compelling governmental interest.”
I feel somewhat unprepared as I attempt to write this article. I believe that I have spent a total of 30 minutes playing what would be judged by this California law to be a violent video game. My experience with video games prior to that was as a Pac Man aficionado – now that’s old school video. Maybe seven or eight years ago I was introduced to the first version of Grand Theft Auto. With that limited exposure to the topic I am not exactly the voice of experience on the subject of today’s forum question concerning the flood of violent video games.
So is this free speech or not? In this day of shrinking personal freedoms under the Obama presidency, I am very hesitant to find against any expression of free speech when it can be found in a legitimate format. Despite my bias towards supporting free speech, I find it a ridiculous notion that video games should be regarded as a form of speech with constitutional protection. Like gambling, video game sales and rentals are commercial conduct, not speech. The only group with a compelling interest of any kind with this issue is the mammoth video game industry. The video game industry has quickly surpassed Hollywood in sales and influence. According to data from the Respondent in this case, Entertainment Merchants Association, the computer/video game industry reached $11.7 billion in sales in 2008. Children spend more time playing video games now than in watching television. It is only this industry that has a “compelling” financial interest in continuing to sell these videos of mutilation and horrific violence to minors. And the California statute would seriously affect their bottom dollar.
If the Court finds that playing video games is not free speech, it can decide the case by determining if there is a rational basis for this California statute prohibiting the sale of violent videos to minors. The Court on numerous occasions has already found a rational basis for protecting minors in cases regarding pornography and gambling. If this is not a free speech matter, the State of California would not be required to meet a difficult burden of proof in order to help parents in supervising their children regarding these potentially harmful videos.
While I have a difficult time in elevating the playing or the selling of violent videos to a form of expression and conduct on the level of flag burning, it’s possible the Court might find otherwise. If the high Court finds that the First Amendment applies to violent video games that are sold to minors and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C, the state would be required to demonstrate a direct causal link between violent video games and physical or psychological harm to minors before the state could prohibit the sale of video games. Here’s where it gets dicey. Clearly there is a compelling state interest in protecting minors from harmful effects of these games. However, although there are studies finding a link between violent videos and aberrant behavior by children, the effect that these games have on children is uneven. Showing the direct causal link between the games and harm to children is the most difficult challenge for the California statute.
Is there a link between these videos and real violence by the children who watch them? We know that when extremely violent behavior occurs, such as school shootings, there has to be a convergence of multiple risk factors. Child psychologists recognize that there are about a dozen such risk factors, each of which increases the likelihood of aggressive behavior; but none of which on its own is a perfect predictor of violent behavior. New studies however do suggest a correlation between extended video game use (especially violent games) and negative psychological and behavioral effects. Among those cited are aggressive tendencies, violent outbursts, and drug and alcohol abuse. The American Academy of Pediatrics, Indiana University, and the Journal of the American Medical Association have all in recent years published studies that found violent behavior increased with video game usage. The AMA study reported “conclusive evidence that playing violent video games has harmful effects on children and adolescents.”
The California statute is simply trying to give parents one more weapon in their arsenal to keep children safe and healthy. The Court can avoid the need for California to demonstrate a direct causal effect between these violent games and children’s mental health by declaring the obvious. Playing a video game is a role-playing activity and is not an exercise of free speech deserving of the protections of the First Amendment. Let’s save the First Amendment for real freedom of expression issues, not for increasing the sales of Doom and Grand Theft Auto.
David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at firstname.lastname@example.org