Can States Constitutionally Regulate Video Games, As California Is Considering Doing?The First Amendment Framework That Would Probably Apply By VIKRAM DAVID AMAR—- Friday, Apr. 30, 2004
This past month, the California legislature began to consider a bill attempting to limit the distribution of particularly violent video games to minors. Bills of this kind have obvious First Amendment implications, but are not necessarily First Amendment violations.
Specifically, the bill proposed by California Assemblyman Leland Yee would regulate electronic games that “taken as a whole . . . appeal to minors’ morbid interest in violence, that enable the player to virtually inflict serious injury upon human beings or characters with substantially human characteristics in a manner that is especially heinous, atrocious, or cruel, and that, taken as a whole, lack serious literary, artistic, political, or scientific value for minors.” According to the bill, the key requirement of heinousness, atrocity, or cruelty can be established if, in addition to other requirements, the game “depicts exceptional pain or suffering on the part of the victim and is accompanied by a graphic depiction of the victim’s injuries,” and “the circumstances surrounding the violence indicate that it is committed without conscience, pity, or empathy.” In today’s column, we address the complicated First Amendment framework that will likely apply when the government attempts to regulate such matters. In our view, if States think that such regulation is good policy, they should not be deterred from legislative experimentation, even though judicial invalidation of such measures cannot be ruled out. A Law Regulating Adults’ Access to Violent Video Games Would Likely Be Unconstitutional To begin, there is no recognized constitutional category identifying expressive materials that contain violent imagery or language as unprotected speech. To the contrary, such materials — say, war movies or novels — have traditionally been thought to be covered by the First Amendment. By comparison, patently graphic sexual imagery or language may be completely prohibited as unprotected obscenity, under the Supreme Court’s leading obscenity case, Miller v. California. But there is no authority suggesting that patently graphic violence is analogously unprotected. Thus, any legislative attempt to restrict the distribution to adults of expressive materials because the materials contain violent acts – even gratuitous and repetitive violent acts — would be challenged under the First Amendment. Moreover, such legislation would likely constitute the kind of “content discriminatory” regulation of speech to which courts apply very strict scrutiny. Under such strict scrutiny, a law will be upheld as constitutional only if it is “necessary” to the furtherance of a “compelling” state interest. Very few laws survive this level of review.
How and Why Minors’ Constitutional Rights Are Treated Differently Laws that prohibit the distribution of expressive materials to minors raise a different question, however. As a general proposition, minors’ constitutional rights are not always protected to the same degree adults’ rights are. To cite an obvious example, minors do not have the right to vote. Similarly, a minor’s right to have an abortion may be subject to regulations that would be rejected as unduly burdensome if they were applied to an adult woman. Why are minors’ rights protected to a lesser degree than adults? The answer courts have given is that because children lack the maturity to make wise judgments, their autonomy deserves less respect from the state than does the autonomy of adults. While paternalistic state regulations are correctly viewed as demeaning when applied to adults, they are considered appropriate, if not necessary, for children. Precedents on Speech for Minors Will Govern Whether the California Law Survives The California law at issue would apply only to minors — so to see how courts will treat it, we must look to Supreme Court decisions evaluating state authority to limit the distribution of expressive material to minors in particular. Unfortunately, the case law here is neither consistent nor coherent. In 1968, in Ginsberg v. New York, the Court upheld (under a very lenient standard of review) a law prohibiting the sale of sexually graphic material that was deemed harmful to persons under the age of seventeen. Because the material was non-obscene, it could be legally sold to adults. The Court concluded that the state had greater authority to limit distribution of material to children, if that material “might prevent their ‘growth into free and independent well-developed men and citizens.'” Seven years later, in Erznoznik v. City of Jacksonville, the Court rejected the argument that a state could prevent drive-in theaters from showing movies containing nudity in order to protect children passing by from brief exposure to such images. |
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