Judicial Notebook

The U.S. Supreme Court will soon hear arguments in Schwarzenegger v. Entertainment Merchants Association (Docket No. 08-1448) to determine whether California can constitutionally impose a $1,000 merchant penalty for selling violent video games to minors (see “Judicial Notebook,” May 2006 for background). The statute in question applies to games with violent content that a reasonable person would find “appeals to the deviant or morbid interests of minors”; is unsuitable for minors; and lacks “serious literary, artistic, political, or scientific value for minors.”

Why is the Supreme Court deciding a case about video games? The First Amendment provides the entrance point because it forbids the government from infringing on Americans’ freedom of speech. Although “free speech” may conjure images of protesters in the town square, freedom of speech has a wide reach that includes wearing armbands and burning the U.S. flag. It may also apply to violent video games.

After the lower courts decided that the California law was unenforceable, the U.S. Supreme Court granted certiorari and will hear the arguments this fall. California’s argument is that the law was based on social science and medical research that demonstrates a link between violent video games and aggression, among other negative outcomes. According to California, these video games do not possess a First Amendment value for children, and the law requires the parents to make an active decision whether their children are permitted to buy these games. In addition, the state argues the legal standard that should be employed does not require the state to prove a direct causal link between playing the games and potential aggressive behaviors. The video game proponents argue that violence, unlike sexual content, is not universally accepted as inappropriate for minors. In addition, they argue that the statute does not — and it would be impossible to — clearly define what would be inappropriate amounts and types of violence. Game proponents also argue that video games artistically express classic themes, such as good versus evil and military combat.

The pivotal question is whether the Supreme Court will view violent video games as an expression of free speech. If the games do not fall into this category, then regulation of them is easy for a state, and the Supreme Court is likely to uphold the law. If they are constitutionally protected free speech, then regulation of them must pass the legal standard called “strict scrutiny.” This means the statute must serve a compelling state interest and the statute addressing such an interest must be done in the least restrictive way possible. For psychological research to be of importance in such a situation, the research needs to speak to the requirements of strict scrutiny. Psychologist Craig Anderson, PhD, of Iowa State University, has extensively studied the effects of media violence. His results from individual studies and meta-analysis demonstrate that there is a link between exposure to violent video games and increased aggressive behaviors and thoughts over the long and short terms. Assuming the games represent speech, the court will need to decide if such research evidence is enough to meet the legally demanding standard in place for restricting speech.

Although Anderson’s work is well-respected and heavily cited (*APA official policy, PDF, 89KB)), the court may still find that the California law is unconstitutional. That does not mean that the Supreme Court does not believe the decades of social science research on the topic, or that it does not want to protect children. Rather, the legal standard for restricting speech sets a very high standard — as most would agree it should be. Even if the law is struck down as unconstitutional, it does not mean that parents should passively allow their children to buy these games; it means that parental involvement will be more important in monitoring children’s exposure to such video games. In fact, all of the responsibility will be on the parents, rather than the state, to carefully monitor what games their children buy and play.

 

*This 2005 policy statement is currently under review. The APA Board of Directors is in the process of appointing a task force to review the literature published in the area since the current policy statement was adopted. The task force will report its findings and recommendations on potential changes to the APA policy statement when its work is completed.

 


“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).