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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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