Free expression in the digital age faces a major test before the U.S. Supreme Court. Earlier this month, the court heard oral arguments debating the constitutionality of a 2005 California law banning the sale of violent video games to minors. If the nation's high court allows California's law to stand, it would pave the way for future laws curtailing all kinds of interactive expression.
In recent years, several states have passed laws barring the sale of violent video games to minors, but courts have found all such laws to violate the First Amendment's free speech guarantee. As one federal judge put it, video games are "just as entitled to First Amendment protection as is the finest literature." Indeed, the framers enshrined freedom of speech in the Constitution because they believed that individuals, not government, should be responsible for deciding whether an expression has value.
California's law covers violent video games that appeal to a "deviant" interest and are "patently offensive" by the standards of what is commonly considered suitable for minors.
But making it illegal to sell violent video games to minors will cause many retailers to avoid stocking such games altogether. And some game developers, fearing a government-issued black mark, may stop creating violent video games entirely.
After all, nobody knows how much violence causes a video game to be considered "patently offensive" to minors. In arguing before the Supreme Court, California deputy attorney general Zackery Morazzini could name only a single video game that California's law would cover, but he guessed it might apply to several other games. Perhaps, quipped Justice Antonin Scalia, California might simply create an "office of censorship" to decide which games should be off-limits to minors. How else could a game publisher or retailer determine in advance whether a particular video game is too violent for kids?
Backers of California's law claim that violent video games cause children to suffer harmful psychological effects. The evidence suggests otherwise. A comprehensive survey of the major scientific literature by psychologist Jonathan Freedman found no established link between exposure to media violence and aggressive feelings in children. According to research by the Mercatus Center's cyber-policy scholar Adam Thierer, juvenile violent crime fell 36 percent from 1995 to 2008, even as the popularity of video games skyrocketed.
Even if some video games may be harmful to some kids, however, the responsibility for making that determination is an individual judgment that should rest with parents, not with government.
Parents who wish to shield their children from certain kinds of video games already have many options to do so, from parental controls to content ratings. In 1994, the video game industry established the Entertainment Software Rating Board, a voluntary organization that rates video games and provides detailed information about their content. Nearly 90 percent of parents whose kids play video games are aware of these ratings.
Not long ago, video games were a niche product. Today, the average American household spends more on video games than on print media, movie rentals and music purchases, according to The Nielsen Company.
Violent video games are today's favorite bogeyman of pandering politicians who want to appear "strong on family values." In the 1950s, politicians targeted comic books; in another generation, a new form of expression will likely face a similar assault.
The U.S. Supreme Court now has a rare opportunity to stand up for free speech and voluntary institutions by striking down California's law.