Video game

Curbing violent video games won’t help here — and it’s legally doomed – MinnPost


While there are undoubtedly many reasons underlying the alarming rise in gun violence, as exemplified by the recent rash of shootings, the notion advanced by President Donald Trump and some other firearms fanatics that violent video games should be curbed is a distorted, dangerous, and doomed concept.

It’s a distortion because there is little, if any, evidence of a causal connection between video games, even the most violent ones, and shootings by their enthusiasts, who are almost exclusively young white men. The extremely popular Madden football video game series contains violent collisions on a make-believe gridiron. But the level of violence in football is being reduced, not exacerbated, as a result of legitimate concerns over the welfare of players.

The lack of empirical basis connecting violent video games and anti-social behavior has been noted in court cases around the country, including landmark litigation here in Minnesota. But more about that later.  

While there was a shooting that took the lives of two participants at a video gaming competition in Jacksonville, Florida, last year, at a Madden gaming tournament no less, that incident was an outlier. Nor was there any evidence that the content of the games was a motivating factor in the slayings.

That those shootings took place at a video games event does not make video games a causative factor any more than garlic was the cause of the slayings at the garlic food festival in Gilroy, California. Similarly, shopping at Walmart or going out for entertainment had no cause-and-effect relationship in connection with the two massacres in El Paso, Texas and Dayton, Ohio.

Casting blame on video games and the industry that produces them also is dangerous because it distracts thoughtful individuals, lawmakers and others from developing ways to curb the contagion of gun violence. The more attention time, energy and resources devoted to the relationship between violent video games and mass firearm slaughters draws those features away from other causes, and cures that can be effective.

A number of state laws shot down

But, above all, the call by the president and others to curb violent video games is legally doomed.

Marshall H. Tanick

Marshall H. Tanick

Over the years, a number of state laws restricting or prohibiting youths from having access to video games have been shot down. Ground zero for this pattern was Minnesota, where a federal court judge in Minneapolis struck down a state measure in 2006 that imposed $25 fines for selling or renting violent or sexual video games to those under 17 years old, on grounds that it violated the freedom of expression provision of the First Amendment of the U.S. Constitution. 

The decision by Judge James Rosenbaum, in a case entitled Entertainment Software Association v. Hatch, cited “the paucity of evidence” of a casual connection to aberrant behavior due to viewing the depictions in video games. Noting the purported justification of the measure to safeguard children, the venerable jurist, now a high-profile private arbitrator and mediator, remarked that no one “opposes protecting children,” but the proscription has obvious “constitutional flaws” in restricting freedom of expression by both the promulgators of the video games and their viewers.

The decision was unanimously upheld in 2008 by the Eighth Circuit Court of Appeals, which oversees federal appeals in Minnesota and six surrounding states. It pointed to the many manifestations of violence in the Bible, especially the Old Testament, Shakespearean plays like “Macbeth,” and other “classical literature.”

In light of these works, the appellate judges were content to bluntly deem violent or sexually turned video games to be “worthy of First Amendment protection and there the matter stands.”

But it did not stand there alone.

The U.S. Supreme Court weighs in

The Minnesota matter set the stage for a conclusive ruling three years later by the U.S. Supreme Court in Brown v. Entertainment Merchants Association.

The case reached the Supreme Court after numerous state and federal tribunals, following the lead of Judge Rosenbaum here, had struck down similar laws in many of the approximately dozen states  that had enacted them. 

The jurists in the nation’s capital took up a California law that established a more substantial $1,000 penalty, 40 times as large as the stricken Minnesota measure, for unlawful video game transactions with youths in the absence of adult supervision. But it only pertained to violent video games, devoid of the sex prohibition in the previously-invalidated Minnesota law.

Despite these differences, the Supreme Court had little problem finding it an impermissible measure under the First Amendment. In a 7-2 vote, the tribunal glossed over the apparent lack of casual nexus, focusing instead on the expressive character of the materials. 

The court’s decision was written by Justice Antonin Scalia, who two decades earlier had struck down a St. Paul “hate crime” measure on First Amendment grounds. In the video games case, he pointed to the violence in classic Grimm Brothers fairy tales as well as critiquing the inequity in only targeting video games and not legislating against violence reaching youths through other media, such as comic books and movies. 

Like the prior rulings in the Minnesota case, the Supreme Court did not waver on First Amendment concerns. Because they “communicate ideas” and social commentary, that “suffices to confer First Amendment protection” on video games,  regardless of their violent contents.

Incidentally, Justice Clarence Thomas, one of the dissenting justices, had another take on the topic. He would have sustained the case because parents have and should exercise “complete authority over their minor children.”

The Supreme Court’s invalidation of the California law seemed highly likely after it had struck down the year before a federal law that made it a crime to commercially depict animal abuse in videos, a device in the cultish “crush” movement of that period. In U.S. v. Stevens, the Supreme Court threw out a felony conviction and imprisonment under the law because the proscription was too broad, overly vague and violative of the First Amendment.

 

It’s been over a decade now since this coterie of cases around the country, stretching from Minnesota to the pinnacle of the judicial system, have deemed laws restricting violent video games to youths invalid.

The horrific deaths and injuries in the recent firearms  massacres, and the ones before them, implore the elected officials to “Do Something” on many fronts, as well as self-restraint by private parties in the manufacture, distribution, advertising, and sale of weapons of violence. 

But it is not the time nor the occasion to try to resurrect the dormant measures restricting violent video games from youths or others, for that matter.

Marshall H. Tanick is Twin Cities constitutional law attorney and historian.

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