The Attacks on "Violent Video Games" and "Torture Porn" Films: Two Different Strategies to Try to Get Around First Amendment Protections

On August 6, U.S. District Judge Ronald Whyte of the Northern District of California struck down a California statute that required the labeling of "violent" video games, and prohibited the sale of such games to minors. Judge Whyte held that, while he was "sympathetic to what the legislature sought to do by the Act," he was also compelled to strike it down because it conflicted with the First Amendment.

In particular, Judge Whyte held, California had failed to establish a convincing connection, or "nexus," between the statute's restrictions on speech and the legislature's "concerns about the well-being of minors." The problem, Judge Whyte suggested, lay not in the labeling but rather the outright censorship where minors were concerned. Still, because the labeling was part and parcel of the statute, it too was invalidated.

The decision was no surprise to most observers: Indeed, an August 13 Los Angeles Times editorial strongly encouraged Governor Schwarzenegger to give up on his appeal of Judge Whyte's decision on the grounds that it is futile because, "[w]ith Whyte's decision, the courts have now thrown out attempts by seven states, one county and one city to regulate violent video games."

In this column, I'll discuss how the statute's passage provides insight into the increasing effort to carve out First Amendment exceptions for violence that parallel those for obscenity. I'll also discuss how the statute fits into the larger movement to regulate so-called "violent" speech, which now encompasses the movement against movies deemed "torture porn" as well.

The Anti-"Torture Porn" Movement: Confusing What a Movie Depicts with What It Does

In a recent column, I discussed the backlash against movies labeled "torture porn" - that is, those that reviewers feel exploit violence in an effort to titillate viewers and boost box office sales. The anger that such movies has provoked has been strong enough that Entertainment Weekly movie reviewer Lisa Schwarzbaum recently went so far as to publish a column condemning movies she admitted she hadn't even seen as "vile crap."

Schwarzbaum has the right, as we all do, to boycott speech to which she objects. In this case, one might even admire her for potentially risking her job to adhere to her principles; eventually, if a reviewer refuses to see enough categories of movies, she might be fired.

However, Schwarzbaum's justification for her stance is both revealing and disturbing: "What is remotely defensible," she asks, "about a movie like 'Captivity,' in which a woman is abducted and tortured for the sake of ticket sales?" (Emphasis added)

This hyperbolic claim is dangerous, for it blurs reality with fiction for rhetorical effect. Of course, no woman is actually abducted and tortured in "Captivity;" rather, a woman is depicted as being abducted and tortured. Saying these acts occurred "for ticket sales," as Schwarzbaum does, suggests that there is not much difference between depiction and reality: What is done in the movie, and what the movie does. Blurring the difference means blurring the difference between speech and action, and thus distorting the boundaries of the First Amendment, in order to allow incursions upon it.

The Importance of Point of View: The Case of "The Accused"

Blurring this difference also means utterly leaving out the movie's point of view. Imagine someone saying, "I won't see vile crap like Jodie Foster's 'The Accused,' in which a woman is gang-raped for ticket sales."

Interestingly, "Captivity"'s point of view may not be so far afield from that of "The Accused," at least according to some. The actress who plays Captivity's heroine, Elisha Cuthbert, has pointed out in interviews that her character is a strong woman who triumphs over her captor.

And, without even seeing the movie, how can Schwarzbaum truly be sure Cuthbert is wrong? As I pointed out in my prior column on the "torture porn" label, the claim that such movies actually endorse violence often arises out of a reluctance to admit that genre movies convey any positive message at all.

There is also a real question as to whether genre movies (as compared to potential Oscar-winners) are any more likely to be interpreted as endorsing what they depict. Remarkably, in a recent interview with Entertainment Weekly, Jodie Foster explained that "The Accused" itself was misinterpreted by some audiences as advocating - not condemning -- sexual violence. Foster commented, "[T]hank God I only went to one screening of that movie with an audience….They cheered the rape. It was awful. And that wasn't an isolated event. It happened all over the country. But I don't think you can legislate your audience. If you're going to make a movie that explores dramatic violence, do you change it because you're worried that people aren't going to take it properly?"

Eliding What a Video Game Depicts with What It Does

The same kind of distortion Schwarzbaum employs in her Entertainment Weekly piece is also at work in the campaign against "violent" video games. Simply calling video games "violent" attempts to blur reality and fiction; video games obviously are not violent in the sense, say, dogfighting is. They depict violence, rather than actually perpetrating it.

Calling video games "violent," then, is much like calling a Barbie doll "anorexic." The real concern is that the games promote violence, and the dolls promote anorexia. What might seem to be innocuous shorthand, however, cloaks the need to provide evidence of a link between the violence depicted in the video games and actual violence committed by those playing the games - the very kind of evidence Judge Whyte looked for, and did not find, when he struck down the California statute.

Despite this parallel, however, there are some differences in the campaigns against torture porn and violent video games.

Using Obscenity Standards to Attempt to Regulate Violent Video Games

Although some may fear that "torture porn" movies may inspire real-life copycat crimes, the far more commonly heard claim is that video games - not movies - are the medium that psychologically conditions those who play them in some way, like rats in a lab, for lives of violence. Arguments are similarly made that pornography psychologically conditions its male viewers to have contempt for, and even sexually assault, women.

This kind of "psychological conditioning" argument makes a poor fit with First Amendment law, because it tends to see us not as the First Amendment sees us - as thinkers, deciding through persuasion and discussion what our politics and culture should be like - but as reflexive actors, responding to stimuli without conscious choice or mental mediation. Nevertheless, the argument has some appeal for many, especially parents who worry about the type of people their children are growing up to be.

No wonder, then, that the California legislature, in drafting the "violent" video game statute, borrowed heavily from the classic legal test for material that is deemed obscene-as-to-minors. The legal definition (given below) is complex, but roughly speaking, obscenity is tantamount to a very extreme kind of pornography. Judges review obscene material with great scrutiny, as the First Amendment requires, before deciding if it can be censored or criminalized, but a good rule of thumb is that obscenity isn't what you can get in the "adult" section of your local video store. It's something judges view as worse.

The obscenity test at issue is derived from two Supreme Court precedents: 1968's Ginsberg v. New York, which held that the test could be less demanding when minors were the readers or viewers of the allegedly obscene material, and 1973's Miller v. California, which set the modern standard for obscenity.

The video game statute closely tracks the Miller test's three prongs, as follows:

First, the Miller test asks if material appeals to the "prurient interest" of the person viewing it. Similarly, the video game statute asks if the material appeals to a "deviant or morbid" interest of the minors playing it or viewing it.

Second, the Miller test asks if "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." (Here, the applicable state law would set out the particular sexual acts the depiction of which would render a work obscene.) The video game statute asks if the game at issue is "patently offensive to prevailing standards in the community as to what is suitable for minors." This borrows both the "patent offensiveness" Miller test requirement and the related doctrine that offensiveness, and thus obscenity, is defined locally, with reference to prevailing community standards.

Third, and finally, the Miller test asks if "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The video game statute asks if the video game has these types of value "for minors."

Under both the Miller test and the video game statute, only a work that satisfies all three criteria can be censored.

Which Is More Contrary to the First Amendment, Regulation of Depictions of Sex, or of Depictions of Violence?

Readers may ask: If extreme material depicting sex can be censored, consistent with the First Amendment, then why can't extreme material depicting violence also be censored without any constitutional impediment?

The answer I would give is that the Supreme Court made a serious mistake in deciding that obscenity laws were consistent with the First Amendment. It should not repeat this mistake with respect to violence. The First Amendment's text lacks exceptions, and so it is very dubious to read large exceptions into it. Moreover, outside the obscenity context, Supreme Court First Amendment doctrine looks with great disfavor at government regulation of speech based on its content. Because Supreme Court obscenity law allows courts to do just that -- that is, regulate speech based on its "obscene" content -- it creates a serious internal contradiction within Supreme Court precedent. In my view, that contradiction should be resolved by courts' invalidating obscenity law.

Think this is too extreme a precedential change? Compare the Court's 1986 decision in Bowers v. Hardwick that allowed states to constitutionally criminalize gay sex, with its decision only 17 years later, in 2003, in Lawrence v. Texas, forbidding states from doing so.

Let's suppose, however, that Supreme Court precedent stays as it is. In this event, it may be quite difficult for First Amendment attorneys to explain why - apart from longstanding practice - regulation of depictions of sex is constitutional, while regulation of depictions of violence is not. After all, the one boundary the First Amendment explicitly marks is that between "speech," which it mentions, and action, which it implicitly excludes. Moreover, while sex is rarely criminalized, violence very typically is.

Again, depictions of violence are far afield from violence itself. Yet the Supreme Court has famously held that some speech relating to violence - advocacy of imminent violence - can be regulated. Moreover, unlike with "obscene" speech, an argument can be made that regulating this type of speech focuses on its effects (violence) not simply its objectionable content. For these reasons, it's arguable that the regulation of so-called "violent" speech has a stronger grounding than the regulation of so-called "obscene" speech.

In my prior column on "torture porn," I pointed out current efforts to use the law allowing censorship of depictions of sex as leverage to increase the ability to censor depictions of violence. Many had previously hoped that, conversely, the fact that depictions of violence have been only rarely regulated would lead to a loosening of the regulation of depictions of sex, as well. Now that such leverage is moving the other way, however, it may be difficult to stop.