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Violent Video Games: A First Amendment Right For Minors?

Violent Video Games: A First Amendment Right For Minors?
On June 9th, the Supreme Court struck down a California law banning minors from buying violent or sexualized video games. Now, children can buy video games that have content with extreme violence without parental consent.

On June 9th, the Supreme Court struck down a California law banning minors from buying violent or sexualized video games. Now, children can buy video games that have content with extreme violence without parental consent. In a 7-2 decision, the law was rejected because it was found to violate the First Amendment. To talk about the affects violent video games have on children is Psychologist Dr. Karen Dill. To talk about why the law was rejected by the Supreme Court is the Legal Director of the American Civil Liberties Union in San Diego, David Blair-Loy.


David Blair-Loy, Director of the American Civil Liberties Union in San Diego and Imperial Counties


Karen Dill, Social Psychologist and Director of the Media Psychology Doctoral Program and Faculty at Fielding Graduate University in Santa Barbara

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

ST. JOHN: Movies and video games can be classified as obscene, if they contain a lot of graphic sex. But violence, however graphic does not count as an obscenity under U.S. law. That's the reason the U.S. Supreme Court has ruled that California's law to ban the sale of violent video games to minors of unconstitutional under the first amendment. Now, children can play video games that contain enormous violence without parental consent. Are you a gamer with an opinion about this law, or maybe you're a parent. You can join us by calling 1-888-895-5727. Here to talk to us about why California's law was rejected by the Supreme Court is the legal director of the American civil liberties union here in San Diego, David Blair-Loy.

BLAIR-LOY: It's my pleasure.

ST. JOHN: And we will also have doctor Karen dill, who's a social psychologist, and a director of the media psychology doctoral program in Santa Barbara. He filed can cause harm. So David, this is a first amendment case, and seven of the members of the U.S. Supreme Court saw it that way. Tell us what -- explain it first of all, why is banning the sale of violent videos to minors unconstitutional?

BLAIR-LOY: It's a content based regulation on speech. And the Supreme Court found that this is protected speech under the first amendment. And content based regulations, by which I mean, you know, laws that prohibit speech based upon its content, are almost always virtually always unconstitutional. That's a core principle of the first amendment. Because otherwise the government could regulate what we can say, what we can read, what we can watch, and what kind of games we can play.


ST. JOHN: Why does this apply to video games and not, you know, movies?

BLAIR-LOY: Well, movies are protected speech. There's been a long history of sensorship in reaction to new media of communication. It started -- going back at least to the nineteenth century with dime store novels. Then it became movies, then comic books, radio plays, radio diaries, television, movies, cable. Now video games, the Internet. For every new medium of communication, there is almost inevitably an effort to stamp it out or censor or regulate what people can see and read and participate in, and that's a core violation of the first amendment.

ST. JOHN: One of the issues that people have questions about is the fact that you can categorize something as obscene if it has graphic sense in it, but not violence. What's the distinction there if.

BLAIR-LOY: Let me clarify a bit because the definition of obscenity under the first amendment is a term of art. It is not merely because there are graphic sexual depictions, whether it's in print or visually. The work has to be taken as a whole, and it has to, among other things, lack -- taken as a whole, lack any serious literary, artistic political, or scientific value. And there's very good reason that that definition is so strict. If an obscenity law were not so strict, it would outlaw virtually any depiction of romantic or sexual love in virtually any form of media. So the Supreme Court has long held that obscenity as defined in this very narrow, strict term of art definition, obscenity is not protected speech under the first amendment, according to the Supreme Court. The sport has never extended that to any -- to another category. Such as violence or anything else.

ST. JOHN: 1-888-895-5727 is our number. Maybe you're a parent, maybe you have some questions about this ruling, about how it's applied. We'd love to hear from you. We have doctor Karen Dill on the line. Thanks so much for joining us, doctor dill U.

DILL: My pleasure, thank you for having me.

ST. JOHN: Now you filed an amicus brief on this case arguing that violent video games can actually cause harm, which I don't know whether that actually has any fact effect on the first amendment. But tell us about what your arguments were.

DILL: I was one of 13 scientists who were arts on the brief, and it was filed by lawyers. So our role as scientists was just to explain what the violent video game research has said, what effects violent video games have, and I'll leave the rest to the lawyers.

ST. JOHN: Okay. So now you've done a lot of retch, I understand. What kind of research have you done to test the effect of violent video games on kids?

DILL: I can tell you about the research in general. In my own research. The research in general says if you look at -- across studies, if you do what's called a metaanalysis that looks over -- dozens of studies that have been done in an area like video game violence, that there are consistent effects no matter what research method you use, no matter what population you United States use, if you use a population of people in Japan or the United States, consistently the research indicates like increased aggression, and another I think really important effect is decreased empathy on kids. There's some really good research, whether it be looking at how -- if kids are exposed to a lot of video game violence, they are less disturbed by another child being harmed, for instance. Or my colleague Bruce Bartlett has done some research about brain scans and found that literally, people who are violent video game players, they lack the same kind of empathic response in their brain than people who are not habitual violent video game players.

ST. JOHN: I understand you have a certain note right in the video game world, in that in grand theft auto they name aid car after you.

DILL: . And I enjoyed the humor of it. I think it's just a little teasing me a little bit about being a video game violence researcher. They called the car the Karen Dilettante, meaning the researchers are dilettantes ask we don't have a sense of humor, that kind of thing. But I found it quite clever.

ST. JOHN: And you believe that grand theft auto is pretty violent, and would have an effect, according to your research, on young people.

DILL: Yes. And for me, as a parent, I would look at this holistically, and for your kids' media diet. How do you want the people in the media to be treating each other, and does that inference how your child is going to be thinking? So like the earlier research examples, the more exposure you have to this hostility and negativity, the less empathic your child might be. I think sometimes people get a little confused and they think that media violence researchers think that if you're exposed to a small amount of media violence, you'll automatically become a violent criminal. And that's not the case. I think one of the fascinated things about media is how we as viewers, and people who interact with media, form a relationship with the character, how we get into the story, and how we take information from that exposure and learn from it. And for video games, there are lots of positive games. And I do research, for instance, on music video games, and positive effects of those. There's a whole gamut of content out there. For me, it's about the fact that we're always soaking something in for our relationship with stories and characters. And sometimes it's a positive or a negative thing, or sometimes a neutral thing.

ST. JOHN: Maybe you have a question for doctor Karen dill or maybe you're a parent, and concerned about what this new legislation means for you. 1-888-895-5727 is the number to call. And David Blair-Loy is with the ACLU. This issue of whether they cause harm or not, does that even relate to the first amendment argument?

BLAIR-LOY: It shouldn't, no, because all speech has some effect on its listeners, on its hearers, on its readers, its viewers. The very purpose of speech is to attempt to persuade, to make people think, to provoke, to enrage, sometimes. That's the very purpose of speech. It's entirely appropriate for parents, as individuals, and as families, to exercise whatever control they think is appropriate over what their children see and read and watch and do. That's one of the points that the Supreme Court made, which is this is properly an issue for parents. And parents can be informed, decision makers, according to doctor dill's research or anyone else's research, they choose to look at. I will say that the Supreme Court, for purposes of its first amendment decision, did not find the research persuasive. They reviewed -- they mentioned specifically research of doctor Craig Anderson and other psychologists, and they said the studies do not prove what they purport to prove. They have been rejected by every court to consider them for purposes of legal censorship of speech. Now, I'm not competent -- and I'm not a psychologist. I haven't read those studies. I'm not competent to judge their methodology, their design, their. Save, their controls, what have you. But certainly for purposes of justifying censorship of protected speech, the Supreme Court did not find them persuasive. And most personal found that all media can cause some reactions among people.

ST. JOHN: 1-888-895-5727. And Jeff is calling us from Encinitas. Thanks for joining the program, Jeff. Go ahead.

NEW SPEAKER: Thanks for having me on. I run a research company in San Diego on video games, and I just wanted to point out that I think in some cases, it is a bit of a red herring. Because the average age of the gamer is now in their late thirties, and only 10% of games that come out have a rating of M. So in some cases, this is a lot to do about a very small portion of the market that's aged well past kids.

MAUREEN ST. JOHN: Well, why do you think that the gaming industry thought it was so penitentiary that they fought it all the way up to the U.S. Supreme Court?

NEW SPEAKER: We were inquired that they were going to restrict basically all the mature rated games, meaning that even people who are over the appropriate age of 17 would not be able to purchase them anymore, because no retailer is going to carry something that they're not sure if it will be randomly enforced.

ST. JOHN: So were your concerns more for the upper -- the last years, 16, 17, 18 sort of age? Is that a big market?

NEW SPEAKER: The rating system for this is the most enforced rating system of of anything out there.

ST. JOHN: Explain how that works.

NEW SPEAKER: It's a rating system much like movies and music, where people submit a game or their movie to be rated, and retailers are charged with enforcing it. And the real estaters comply more on video cams than they do on movies or videos. It's been independently verified.

ST. JOHN: So even though you cannot be charged with doing something illegal, what are the penalties if you don't enforce those ratings?

NEW SPEAKER: Usually -- actually I'm not sure on what the actual penalties are. But I do know that they are enforced more than any other one. I think they have over 80% compliance, which is well higher than movies or music. Thank you for that. Upon David?

BLAIR-LOY: The caller makes a very -- leads to two very important points. One is that in general, any attempt to regulate speech on the ground that it's harmful to minors will inevitably lead to restricting and prohibiting speech that adults can read or access. And the Supreme Court has made exactly that point in cases about the Internet, in attempting to restrict the Internet, restrict speech on the Internet. The second point that I think is also implied, and what the caller just said, is that many, many video games are also used, played, downloaded, sold over the Internet, and there's no way to verify age over the Internet. Not only that, it's difficult to verify where the purchaser is coming from. So it would be -- it would have an enormous chilling effect not only on sales in stores of games on disk or in a box, but it would significantly channel the ability of adults to access restricted speech on line, because the retailer has no way to know who's on the other side of the computer.

ST. JOHN: Karen, I want to ask you what you think about the rating system. Is that enough of a protection?

DILL: Well, one thing I guess I would point out about rating systems and industries usually are in charge of rating themselves, such as the film industry. And it's true for the video game industry as well. However, I think now, today, parents have so much greater access to resources than they did in the past, not only do they have a rating as it appears on the box of the game, but now with increased Internet resources, you can go to a website like what they, and look at the content descriptors on a game, such as graphic violence, and you can see clips of what that entails. And you can see descriptions and content from other parents, in terms of doing your job as a parent, you can access exactly what those different ratings meek.

ST. JOHN: So you think if you're a responsible inter~a, the ratings are pretty effective?

DILL: Yeah, I think I definitely encourage parents to use the ratings. And I think that the ratings also -- they sometimes differ from parental ratings in certain studies: The ratings are a great place to start. And I definitely encourage people to use those.

ST. JOHN: Okay. Yes, thanks for that. So now I just wanted to go back to this question, David, just one last thing. What do you think this says about our culture where we say that sex can be obscene but violence is not?

BLAIR-LOY: Well, I'm a lawyer, not a cultural anthropologist. And I'm a strong believer in freedom of speech, if somebody thinks bad, the remedy for bad speech is more speech. The remedy is not government censorship, because that sets a dangerous precedent. If we start allowing the government to decide what we can see, read, say, then the government begins to have the power to decide what we think, and what we feel, what we believe. And that's whyir agree with doctor dill to the extent that parents have the responsibility to be vigilant and careful about how they raise thirds requirement children, and the more information out there, the better.

ST. JOHN: I'd like to thank our guests, David Blair-Loy with the ACLU in San Diego. Thanks for clarifying the legal issues that don't necessarily jell with common sense but certainly are so key to whoey woo are as Americans and need to be observed. And also doctor Karen gill, thank you for being with us from New York. You filed an,a meekis brief. And had some interesting insights into what your research showed about violent video games. Thank you for being with us.

DILL: You're welcome.

ST. JOHN: I'd like to thank you for listening. And I'm Alison St. John.