Who knew that video games could be such a big deal? Currently the United States Supreme Court is weighing arguments in favour of banning the sale of graphically violent video games to minors, but the case is not as straightforward as some of us might think.

It boils down to the issue of whether these games are “free speech” as protected by the US Constitution, and if so, whether they are in the same class as sex magazines that were restricted 40 years ago because of the ethical and moral harm they could do young people. It is a question of making an exception to First Amendment rights.

Several states and local governments moved to restrict access to videos involving very graphic violence in the wake of school shootings such as the one at Columbine High School in Colorado. However, federal appeal courts have declared the proposed laws unconstitutional. Now the Supreme Court has agreed to look at a California law.

Law professor Gregory K Laughlin argues in favour of the bans, saying that graphic video violence poses as much as if not more of a moral threat to young people than “girlie magazines” did, and do. He criticises one appeal judge’s decision thus:

In his opinion, Judge Posner noted that violence is an ageless theme of literature and the theater and one to which youth have been exposed from time immemorial. What he failed to do was make the common sense distinction between reading about Brutus slaying Julius Caesar in Shakespeare’s play or seeing it acted on a stage or in a movie, and being a virtual assassin in an interactive video game. To compare the two is a category mistake. They simply are different in kind and not merely in degree.

More importantly, there is no more need to find some scientifically certain psychological harm to minors who play violent games to justify restricting their access to those games than there is to find scientific certain psychological harm to teens who view “girlie magazines.” The issue in the earlier case was not psychological harm, but impairment of the ethical and moral development of youth. Just as viewing soft core pornography might cause some young men to come to view women as no more than objects to satisfy their lusts, playing violent video games may cause some players to develop insensitivity toward their fellow human beings and their suffering.

However, last week Supreme Court judge Antonin Scalia also questioned the comparison between sexually obscene publications and violent games. A transcript published online reads in part:

“I–I am not just concerned with the vagueness,” says Justice Scalia at one point. “I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.”

“You are asking us to create a–a whole new prohibition which the American people never–never ratified when they ratified the First Amendment. They knew they were–you know, obscenity was–was bad, but–what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does–will that affect them? Of course, I suppose it will.”

Justice Scalia continues, asking Morazzini whether the court should work “day by day” to determine if anything else should be exempted from First Amendment protection. “Why–why is this particular exception okay,” he asks, “but the other ones that I just suggested as not okay?”

Justice Scalia is well-known for his stance against judicial activism, that is, judges finding things in the Constitution that were never intended, such as a right to abortion…

Making exceptions that restrict “free speech” could be just as troublesome.

And here is another thought: If 19- to 30-year-olds are buying and playing Grand Theft Auto: Vice City, how will it not get into the hands of younger people?

Can age restrictions protect them from the evidence that adults actually like a game “in which the player has sex with a prostitute, who he then kicks in the groin until blood spurts out and repeatedly hits in the head with a golf club” — to quote Laughlin on GTA: Vice?

Isn’t parenting and character education the real remedy for trash?

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet