Wednesday, July 13, 2011

Sex, Violence, and the 1st Amendment

One common theme around the world is that nearly all societies attempt to protect their children from what they consider inappropriate material. In the United States, we mainly shield children from material pertaining to sex, but tend to overlook violence as harmful to children.

A few weeks ago, the United States Supreme Court ruled on a challenge to California legislation that banned the sale of violent video games to minors. The case, Brown v. Entertainment Merchants Association (2011), was decided in favor of video game manufacturers by a 7-2 margin.

The case hinged on the idea that violence portrayed in video games were as damaging to young people as the exposure to sexual materials (or so the state of California argued). For decades, the Court has maintained states can regulate material deemed 'obscene.' The difficulty in defining obscene caused a great deal of speculation about what the word includes.

The Court set a three pronged test in 1973 (which resulted from Miller v. California) to determine what constitutes obscene material. To be considered obscene, and thus not protected as free speech, material must meet these criteria:
(a) ... "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.1

When examining this standard for obscene, the Court is providing only for the regulation of sexual material.

The state of California, in writing their legislation banning the sale of video games, attempted to incorporate the Miller test,
" ... The Act covers games 'in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted' in a manner that '[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,' that is 'patently offensive to prevailing standards in the community as to what is suitable for minors,' and that 'causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.'"2

The problem in California's approach was noted by the Court, "... Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct' ... we have encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity."3

Furthermore, the Court conceded that certain patterns of speech are not protected by the First Amendment, yet they chose not to carve out a new exception to free speech in this instance. Why not?

I understand that in their conclusion, the Court was correct in asserting the Miller test only applied to sexual material. The state of California approached this in the wrong method.

The Court itself also noted that violent video games do have a pattern of correlation with harm to our youth, but stopped short of saying it was a causation. Members of the Court also asserted, "... Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices ... That suffices to confer First Amendment protection."4

What type of society supports guarding our children from sexual exposure but allows video games showing acts that are realistic, graphic, and violent?

In a dissenting opinion, Justice Breyer discussed the issue of video games in depth and the unique situation they present. Juxtaposed with violence seen on television or movies, video games are different because they involve a player actively participating in the violent action.

He noted that states held a compelling interest in protection of minors in many situations, particularly with respect to sexual materials, but hardly any protections are in place as a shield from the violent material correlated with more aggressive human behavior.

Breyer saved his most poignant thought for last, stating,
"... what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?"5

In my mind, Breyer is correct to ask this question. Our society imposes number of limitations on children, but we are expected to believe no compelling interest for the government to intervene exists?

Reasons exist for our society limiting what types of sexual material can be sold or disseminated. Limiting the sale of video games to minors, like limiting exposure to sexual materials, can only help our society and poses no great threat to liberty, as many critics would have us believe.

Can anyone explain why violence isn't subjected to the same scrutiny as sex? I'm struggling to find a reason.


Endnotes

1Miller v. Califonia U.S. 413 (1973)

2Opinion of the Court, Brown v. Entertainment Merchants Assn. 564 U.S. _____ (2011)

3Ibid.

4Ibid.

5Breyer, J. Dissenting, Brown v. Entertainment Merchants Assn. 564 U.S. _____ (2011)




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