Violent Video Games

Sometimes the government finds it necessary to keep speech products away from minors for what is considered their own good. In 1968, for example, the U.S. Supreme Court ruled that it was permissible for a state to ban the sale of sexually explicit materials to juveniles, even though that very same material could legally be sold to adults. More recently, a number of states throughout the country attempted to enact a similar prohibition with respect to violent video games. They were not successful. Although the Entertainment Software Association reports that parents are present when video games are rented or purchased 90% of the time, lawmakers felt it was necessary to restrict minors' access to violent games.

Leaving aside the political reasons for legislating in the area, let's examine the legal problems the government faced in trying to get such a law to pass constitutional muster—something that eluded it in every single case on the issue, including the final one in 2011 before the United States Supreme Court.

Applying what you've learned so far in this lesson, it should be easy to figure out that any law that restricts minors' access to violent video games is a content-specific law. The government is attempting to curb a particular type of expression (violent content), and therefore the appropriate legal test for a court to apply is strict scrutiny.

Recall that the strict scrutiny test puts the burden on the government to demonstrate

• a compelling governmental interest and that,
• the government is using the least restrictive means to achieve that interest.

For the government to show a compelling interest, it must demonstrate a vital need for the restriction. That is where the cases against video games fell apart in every instance. The courts hearing these cases said that to show a compelling interest, the government would need to show proof that a minor playing a violent video game would be harmed. Stated differently, there would have to be a causal connection between a minor playing the game and then behaving violently in society. So far, no social scientific study has been able to prove that connection; the best that social scientists can show is correlation.

We hear more about this concern just about every time there is a mass shooting in this country. Often when police look into the background of the shooter, they find that the shooter had played violent video games. But that doesn't prove a causal connection. At most, it is a correlation. After all, the shooter might have regularly drunk a certain type of cola, but that doesn't mean the soda caused the violent outbursts. The courts have been remarkably clear and consistent that only a proven causal connection will satisfy the compelling interest prong of the test.

Violent video game laws suffered from other constitutional defects, and the vagueness doctrine figures principally among them. One of the other problems the government faced in restricting minors' access to violent video games was adequately defining just what constitutes a violent video game. Remember, the vagueness doctrine requires that the law be clear enough that people of ordinary intelligence should be able to read the language of the law and understand what speech (or in this case, what type of content) is being prohibited. As lawmakers grappled with this issue, they often failed to meet this test. As one state's bill defined it, the violence had to be "especially cruel and heinous” (Cal. Code). Those terms were further defined as “shockingly atrocious.” However, these definitions are too vague. Consider these questions: If you sold video games in your store, would you be able to determine which games were “especially cruel and heinous,” defined as “shockingly atrocious” (Cal. Code) in terms of violence? Would you know which ones you couldn’t sell to minors in order to avoid criminal prosecution?

 

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References

Cal. Code § 1746-1746.5