This editorial will appear in Tuesday’s edition.
In 1968, in the wake of a groundbreaking U.S. Supreme Court decision allowing states to ban the sale of girlie magazines to minors, the editors of Time magazine noted:
“It is now all right to ban certain materials for children, but just what those materials are remains to be spelled out.”
Forty-two years later, the courts are still sorting out that question. The current nine justices waded into the issue last week, taking up the case of a California law that seeks to bar the sale of violent video games to anyone under 18.
The question before the court: If society can prohibit minors from buying the likes of Penthouse, can it also restrict access games that invite kids to role play murder and torture?
The answer should be yes, even if the justices find California’s law too vague to pass constitutional muster.
California wants to prohibit the sale or rental of videos that encourage “killing, maiming, dismembering or sexually assaulting an image of a human being,” have no serious artistic or literary value and appeal to a “deviant or morbid interest.”
The law never had a chance to take effect, but it’s safe to suppose what the state had in its sights: Games like “Postal 2” and “MadWorld” that encourage gamers to virtually decapitate school girls, feed victims into a meat grinder and worse.
Lower courts have been united in their opposition to states’ attempts to regulate sales of violent video games to minors, ruling that First Amendment offers depictions of violence greater protection than sexually explicit images.
That the Supreme Court agreed to hear the California case suggests it is either hoping to discourage more states from passing such laws – or it is looking to wrestle with whether sex scenes really are inherently more offensive than animated acts of dismemberment and murder.
Notably, Chief Justice John Roberts Jr. was one of the California law’s biggest defenders at last week’s oral arguments. He was the author of a majority decision earlier this year that struck down a ban on videos showing graphic violence to animals – an opinion that the gaming industry had hoped would bode well for their chances of fighting the California law.
Roberts batted at arguments that video games should face no greater regulation than television or movies. “In these video games the child is not sitting there passively watching something,” he said. “The child is doing the killing. The child is doing the maiming.”
Opponents of the California law argue that states cannot substitute their judgment of what’s appropriate for young eyes for parents’ judgment. They are absolutely right. Parents have the ultimate responsibility to decide what their children see.
But California’s law is a help, not a hindrance. It allows parents, not children, to make the call. Just as dads in 1968 could still buy their sons Playboy, so too can today’s moms give their teens “Grand Theft Auto.” No court in the country would say differently.
The only question is whether minors have a greater constitutional right to blood and gore than they do to porn. Justices should be skeptical.