Restricting video game sales violates free speech

Concerns that screen violence will lead to real violence are unfounded

October 04, 2010|By Michael D. Gallagher

The First Amendment to the Constitution holds such an important place in our society — socially, politically and legally — that special rules exist when our government attempts to abridge the cherished right to speak freely.

The right is not absolute. It can be restricted, and — as in the case of not being allowed to yell "fire" in a crowded theater — sometimes it has been, but only if the government can provide a "compelling" basis for the restriction; never if the basis rests on a myth.

Yet, in November, the Supreme Court will hear oral arguments on a 2005 California law that would regulate the sale and rental of computer and video games to minors. The law is based on the discredited myth that the fictional depiction of violence actually causes real violence.

Last year, the U.S. Court of Appeals for the Ninth Circuit followed a lower court ruling and struck down California's law as an infringement on constitutionally protected free speech. This was the latest of 12 consecutive decisions by federal judges across the nation to reject state efforts to restrict sales or rentals of video games. A key reason, according to the Ninth Circuit's decision, was that California "has not produced substantial evidence … that violent video games cause psychological or neurological harm to minors."

The Ninth Circuit was particularly critical of the research California relied on to make its case on the link between games and violence. The judges said that other courts had rejected the research outright or found it "insufficient to establish a causal link between violence in video games and psychological harm."

This view was shared by 82 expert social scientists who have filed a legal brief urging the Supreme Court to reject California's law. In a rebuke to the research California presented, they wrote that the state, "ignore[d] a weighty body of scholarship, undertaken with established and reliable scientific methodologies, debunking the claim that the video games California seeks to regulate have harmful effects on minors."

Indeed, there is no peer-reviewed research that proves a causal link between violence in games and real world violence. In their 2008 book, "Grand Theft Childhood: The Surprising Truth about Video Games and What Parents Can Do," Harvard Medical School professors Dr. Lawrence Kutner and Cheryl K. Olson wrote: "The strong link between video game violence and real world violence, and the conclusion that video games lead to social isolation and poor interpersonal skills, are drawn from bad or irrelevant research, muddleheaded thinking and unfounded, simplistic news reports."

Leading U.S. government authorities such as the surgeon general, the Federal Trade Commission and the Federal Communications Commission have also acknowledged that no scientific research validates this causal link.

Common sense points in the same direction. During the last 15 years, as video game popularity has soared in this country, the rate of violent crime, particularly among the young, has been decreasing drastically — exactly the opposite of what would be expected if there was a causal link between these games and violent acts committed against real people.

Further, many games with violent content sold in the U.S. — and some with more violence — are also sold in foreign markets. However, the level of violent crime in most foreign countries is considerably lower than that in the U.S. This strongly suggests that other influences are more relevant to understanding the causes of criminal behavior.

Never before has the Supreme Court restricted freedom of speech on the basis of violent content. There is no logic in restricting sales of video games, which use avatars, but not books or movies, which often depict violence committed by — and upon — real people. Accordingly, organizations representing the book, film and television industries have also filed briefs asking the Supreme Court to strike down California's law. So, too, have journalism groups that worry the California law could set a precedent that might ultimately restrict what news organizations are allowed to print or television stations to broadcast.

Legal precedent, expert opinion and logic all yield the same conclusion: The California statue is unconstitutional, unwarranted and unnecessary. Based on the law and the facts — not the myths — we hope the U.S. Supreme Court concurs.

Michael D. Gallagher is president and CEO of the Entertainment Software Association, the trade association that represents the U.S. computer and video game industry. His e-mail is esa@theesa.com.

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