Spotlight on Digital Media And Learning

6.27.11 | The 7-2 Supreme Court ruling, excerpted here, shows a surprisingly high level of respect for kids making their own decisions about the media they read, watch and play.

The Supreme Court today ruled that states cannot ban the sale or rental of violent video games to children. The case stemmed from a 2005 California ban adopted by state lawmakers that prohibited games involving “killing, maiming, dismembering, or sexually assaulting an image of a human being.” 

From Associated Press:

On a 7-2 vote, the high court upheld a federal appeals court decision to throw out the state’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors’ rights under the First Amendment, and the high court agreed.

“No doubt a state possesses legitimate power to protect children from harm,” said Justice Antonin Scalia, who wrote the majority opinion. “But that does not include a free-floating power to restrict the ideas to which children may be exposed.”

The California law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction.

More than 46 million American households have at least one video-game system, with the industry bringing in at least $18 billion in 2010.

Read the full decision (pdf) here. Four justices joined Scalia’s majority opinion. Justice Samuel Alito wrote a concurring opinion joined by Justice John Roberts. Justices Clarence Thomas and Stephen Breyer filed dissenting opinions.

NPR’s Nina Totenberg, in an earlier report, described the case:

California defended its law, contending that violent video games are harmful to children. The state said that since minors do not have the same First Amendment rights as adults, all this law does is ensure that parents decide which video games their children can buy. But the video game industry countered that California’s law is a solution in search of a problem. The industry notes that it voluntarily puts ratings on each game, instructs stores not to sell mature games to minors, and that the Federal Trade Commission found 80 percent compliance — the best record in the entertainment industry.

Perhaps most interesting for those of us engaged in discussions about media literacy and content, Scalia very clearly situates the decision (pdf) within the volatile historical context of attempts to regulate pop culture for youth—from dime novels and comic books to TV shows and music lyrics:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” ... Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

This is not to say that minors’ consumption of violent entertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. When motion pictures came along, they became the villains instead. [...] For a time, our Court did permit broad censorship of movies because of their capacity to be “used for evil,” but we eventually reversed course (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate. But efforts to convince Congress to restrict comic books failed. And, of course, after comic books came television and music lyrics.

And here’s Scalia on the subject of interactive media:

California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive.  Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

Alito, in his concurring opinion, wrote:

Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite “deviant” or “morbid” impulses.

Finally, the difficulty of ascertaining the community standards incorporated into the California law is compounded by the legislature’s decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.

Writing at the Washington Post, Melissa Bell describes four of the most violent games that would have been included in the ban. And Hayley Tsukayama, who covers consumer technology and technology policy, writes:

I, for one, agree with the court, knowing that I get shivers from imagining the torture in George Orwell’s 1984, but am somehow relatively unfazed by the spine-ripping, heart-tearing final moves in Mortal Kombat. Whether those kinds of games are in poor taste or not is a different matter. I certainly think parents should learn about the games their kids want to buy — and understand the industry’s own rating system — to make their own decisions about what’s appropriate for their children. But I’d say that parents should make their own judgements about any other medium, be it a book, movie, play or art exhibit.

Over at The New Republic, Kara Brandeisky questions whether the current rating system is a useful deterrent. Referring to a Dutch study that found that “mature” ratings made video games seem more attractive to children (”Age and Violent-Content Labels Make Video Games Forbidden Fruits for Youth”), Brandeisky notes the authors’ conclusion:

“Age and violent-content labels do not prevent youngsters from playing games with objectionable content. Instead, our results show that labels have the opposite effect: they increase attraction to video games with objectionable content.” At the same time, they say studies show that “parents rarely use the labels” when allowing their children to buy video games. Whoops. [Marije Nije] Bijvank and [Elly A. Konijn] Konjin advise pediatricians to talk to their young patients about violent video games, but to be careful of the “boomerang effect”—when pronouncements of disapproval only encourage stubborn children to do just the opposite of what their parents want.

What’s your take on the decision? Are you surprised by Scalia’s opinion essentially equating video games with literature or by other parts of his argument?