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Supreme Court Decision: Alito Expresses Uncertainty About Violent Games' Effects
Supreme Court Decision: Alito Expresses Uncertainty About Violent Games' Effects
June 27, 2011 | By Kris Graft




In a landmark ruling on Monday, the U.S. Supreme Court voted 7-2 against a California video game law that sought to place government restrictions on the sale of violent video games to minors.

Justice Samuel Alito was one of the seven judges that voted against the law, but he still expressed reservations about violent video games, and the role the government should play in their regulation.

Uncertainty Of Video Games' Effect On Minors

"In the view of the Court, all those concerned about the effects of violent video games -- federal and state legislators, educators, social scientists, and parents -- are unduly fearful, for violent video games really present no serious problem. ... Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature..."

"The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show."

"Impermissibly Vague"

"Respondents in this case, representing the video game industry, ask us to strike down the California law on two grounds: The broad ground adopted by the Court and the narrower ground that the law's definition of 'violent video game' ... is impermissibly vague. ... Because I agree with the latter argument, I see no need to reach the broader First Amendment issues addressed by the Court."

On The Definition Of "Obscenity"

"For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law's threshold requirement would more closely resemble the limitation in [obscenity trial] Miller [vs. California] if it targeted a narrower class of graphic depictions."

"...In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature relied on undefined societal or community standards."

Violent Games, Violent Children's Literature

"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."

Could Another Game Law Survive Scrutiny?

"I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it isnecessary to do so."

Do Parents Need The Law?

"Citing the video game industry's voluntary rating system [ESRB], the Court argues that the California law does not 'meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so.' ... The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation ... a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law [2005] left much to be desired -- or that future enforcement may decline if the video game industry perceives that any threat of government regulation has vanished."

"Nor does the Court note, as [the dissenting] Justice Breyer points out, ... that many parents today are simply not able to monitor their children's use of computers and gaming devices."

Concerns Over Games' Astounding Violence

"Some amici who support respondents foresee the day when 'virtual-reality shoot-em-ups' will allow children to 'actually feel the splatting blood from the blown-off head' of a victim."

"...In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed."

"It also appears that there is no antisocial theme too base for some in the video game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in 'ethnic cleansing' and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository."

"If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence."

A "Developing Social Problem"

"For all these reasons, I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us."


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Comments


james sadler
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Are there actually games around like the ones he mentions? Probably somewhere on the internet. I can't recall any major game company putting out anything like them, aside from maybe Postal. Even if they do exist on the net laws like these wont prevent them from cropping up and being played by those "kids" that might already have pre-existing mental/social disorders. Even if these games were banned those "kids" will ultimately find another outlet.



Throughout the last few decades people who don't understand a medium always tend to see it as evil and try to legislate it. These people tend to attack with ignorance and ultimately end up looking the fool. Memories of the hearing on Rock and Roll from the 80's with Dee Snyder come to mind. I am all for the ESRB ratings and if clerks actually enforced them things might be different to a degree, but most of the problem comes down to parenting. Give these "kids" the benefit of the doubt and they might surprise you. I remember a case where my friend's 13 year old son rented Grand Theft Auto 3 (I think) from Blockbuster, brought it home, played it for a couple of hours, and then took it back. He just couldn't handle all the language and pointless violence. Not all kids are the same and I don't argue that, but parents need to be a little more involved in what their kids are playing before they start blaming the game company.

Joe Wreschnig
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Yes, all those games are real, and many of them are (or were) major titles.



"...In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws."



There's plenty of games like this, MadWorld probably being the most varied in its killing implements, but I mean the things listed there all go back as far as Doom, 1993.



"Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown."



Rise of the Triad, 1995.



"In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed."



Mortal Kombat, 1992.



"There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech."



These are fairly well-known indie games, and they are generally far from the gore-filled genres mentioned previously.



"The objective of one game is to rape a mother and her daughters;"



Rapelay, never distributed in the US, and certainly would not receive an M rating; standard obscenity laws still apply to games.



"in another, the goal is to rape Native American women."



I assume this is Custer's Revenge; that it's mentioned at all is laughable.



"There is a game in which players engage in 'ethnic cleansing' and can choose to gun down African-Americans, Latinos, or Jews."



I'm not sure what this is, perhaps the Arizona police have gamified some part of their training?



"In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository."



This is a historical simulation, it's like being upset at Axis and Allies. (Actually A&A is probably worse overall because of all the atrocities it pretends didn't happen.)



So yeah, all those games exist, and the most gore-porny of them are all old. People who played them as kids are all grown up now. And society hasn't collapsed.



Fundamentally, no one wants to "'actually feel the splatting blood from the blown-off head' of a victim.". We're wired to find winning fun, but likewise find killing atrocious. That level of violence is only fun in games because it's so far removed from reality.

Steven Stadnicki
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According to the footnote, the game is itself called _Ethnic Cleansing_ : http://www.wired.com/culture/lifestyle/news/2002/02/50523 is the article about it. It really is disturbing how many of the games mentioned as 'bad examples' in Alito's concurring opinion are completely irrelevant to the California law, long out of print or simply not retail games.

Joe Rheaume
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This was a very well-written and informative reply. Thanks for writing it! It might also be helpful to point out to those unfamiliar with Custer's Revenge why its inclusion was so laughable.

Ardney Carter
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For the list of games he's talking about see references 13-18 of Alito's concurring opinion

E Zachary Knight
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Joe,



For Custer's Revenge, It was a game made for the Atari 2600. The game characters were barely identifiable as human, there was no dialog or context. It was simply a naked man dodging arrows in an attempt to rape a native american woman.



If they have to dig that deep to find a game to decry, they are really scraping the bottom of the barrel.

Bart Stewart
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The problem with giving examples to people who want to disagree with you is that it's easy to fixate on the particular examples given.



Doing so only obscures the larger points: where there's one example of something, more can exist. And enough small things put together can have a big impact -- one TV show or book or game claiming that some behavior is OK is no big deal. But what happens when there are many such things, when they become a convention of mass media?



That's the question that advocates of content freedom for video games -- and other expressive media -- need to address to be taken seriously. No one game or book or movie can destroy civilization... but do game developers really bear no responsibility at all for what their product contributes to the society that enabled the creation of that product?

Keith Patch
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"It also appears that there is no antisocial theme too base for some in the video game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in 'ethnic cleansing' and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository."



... ... ... It's hard to put my feelings into words about this statement. To say "game industry" here is a bit... well, it's wrong. These describe independent works (extreme ones at that). It's not the " game industry" exploiting those things either... it's extremists that are exploiting those things.





"Nor does the Court note, as [the dissenting] Justice Breyer points out, ... that many parents today are simply not able to monitor their children's use of computers and gaming devices."

There's software to do it for them...


none
 
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