The Kickham Comment - Boston Criminal Attorney Blog
Each October, the Supreme Court of the United States (SCOTUS, in the legal community,) hears arguments on cases that it has announced earlier in the year, that it will hear. Last month, it heard oral arguments on a California law that sought to ban the sale or rental of violent video games to teenagers under the age of 18. What happens with this decision, which may be announced next June (2011) will impact the moral direction of this country in ways that most people cannot yet even imagine.
As I wrote this post, I considered where I should publish it: Here on my criminal law blog, or on my Boston Accident Lawyer blog. I decided to publish it here, not only because the issues involve criminal law, but for a more important reason: I consider the gradual erosion of decency, dignity and public morality in this country to be a crime. I also consider it a “crime” (symbolically speaking) that we have a Supreme Court that routinely fails – using liberally expanded interpretations of the First Amendment and definitions of “free speech” – to allow state and local governments to enact laws that will stem the rapidly growing spread of violence and barbarism that infects our nation. I say this as a Boston criminal attorney who believes that the court should always intone the First Amendment to safeguard the individual’s right of free speech against government. I do not believe the First Amendment should be misused to allow any and all kinds of speech, no matter how destructive or dangerous, anywhere, on any subject, in any form, at any time. That is not what the First Amendment was intended to protect, and its perversion has produced devastating social and cultural effects in this country.
This current case before the Court is not a standard, run-of-the-mill case about the First Amendment and “free expression.” Nor, despite its facial appearance, is the case really about “commercial free speech.” Don’t let liberal-leaning reporters and writers fool you that this case is about such high-minded, deep-thinking constitutional principles (though, as with all cases before the Court, this case does involve constitutional issues.) This case is about moral integrity, and human integrity. It is about the protection of minors, whose brains under the age of 18 are not fully developed and medically proven to be vulnerable to the suggestive and pernicious effects of violent imagery. It is about the protection of our country from the rapid and virulent infection of violence that plagues seemingly every corner of our society – from gritty urban streets, to bucolic rural towns in New Hampshire. It is about the protection and promotion of dignity and decency – and of the rapid decline of those once so American of values. In essence, this case is about the frighteningly rapid degradation of morals and the escalation of savagery in this country, accelerated under the aegis of “free speech” and “constitutional principles.” Make no mistake: This case will be a barometer of where this country is headed – sinking into an ever-deepening sewer of moral filth and cultural degradation – or rising once again to be the decent, values-laden country that it once was.
The background: In 2005, the California state legislature passed, and Governor Arnold Schwarzenegger signed into law, a ban on the sale or rental of extremely violent video games to minors under the age of 18. The law defined a violent video game as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being,” in a manner that a reasonable person would find appeals to “a deviant or morbid interest” of minors, is “patently offensive” to prevailing standards of what is suitable for minors, and causes the game – as a whole – to lack “serious, artistic, political or scientific value” for minors. Since all that language probably sounds overly-legal to the average person, let me give you an example of the kinds of videos we’re talking about here: In the best-known of these videos (one of the first to be sold) “Grand Theft Auto,” players are rewarded for graphically killing and dismembering as many police officers as possible. In one of the more recent, (I won’t name the title) a girl begs for mercy before being decapitated and doused with gasoline by the player. These sadism-filled, twisted “games” encourage and reward the most barbaric, violent of human impulses. Picture seeing a teenager (usually a boy, though not exclusively,) staring at a TV or computer screen, a facial expression filled with glee and pleasure, as this perversity infects his young brain, and what he perceives to be “desirable.”
The law mandated package labeling of video games containing this kind of violence, and provided for civil penalties of up to $1,000 for violations of the statute. The law didn’t outlaw or punish the sale of these twisted displays of truculence and sadism to anyone over the age of 18, only to teenage minors under 18. Sounds reasonable, right?
Not to a federal judge. The law was blocked before it ever even had a chance to go into effect on Jan. 1, 2006. Why? The video game industry, of course, brought suit in federal court in California’s Ninth Circuit Court of Appeals, arguing what were essentially First Amendment “free speech” rights – and it won. The state of California appealed that ruling, urging the U.S. Supreme Court to adopt a new constitutional standard that would allow states to ban the sale or rental of violent video games to teenagers under the age of 18. The case is Schwarzenegger v. Video Software Dealers Association (08-1448).
In its appeal, attorneys for the state of California urged the Court to adopt a constitutional standard created over 40 years ago to allow states to protect minors from the sale of patently obscene materials. Adopting this standard would also allow states to ban the sale or rental of video games containing graphically violent content (content that is described above, and that meets the definitions of the 2005 California statute.) That 40-year-old standard, originated in the Court’s 1968 decision in Ginsberg v. New York, specifically allows states to enact laws banning the sale of obscene materials to minors, if the law represents a reasonable judgment by a state legislature that exposure to such material will harm minors. To date, that 40-year-old standard has only been applied to prohibitions on the sale of sexually explicit, obscene materials to minors – but not yet to violent video games (which, of course, didn’t yet exist 40 years ago.)
When California’s state attorneys made this argument before the Ninth Circuit Court of Appeals, the court refused to apply that standard. Instead, it applied the most rigorous constitutional standard under the law for reviewing laws that curb expression – “strict scrutiny.” (Note: Legally speaking, almost no limitations on free speech pass this standard, which is why the Ninth Circuit judges used it.) According to that court, (believe this, if you can,) there was “no proof” that playing sickeningly violent video games would cause physical or psychological harm to minors. As a practicing attorney, I find this stunning. But sadly, perhaps it shouldn’t be so surprising: The Supreme Court justices only two weeks ago released another decision involving depictions of violent savagery and the First Amendment. In U.S. v. Stevens (08-769) the Court struck down a federal law banning the video depiction of sadistic cruelty to and torture of defenseless animals. These are videos which, if you can believe it, are produced by the sickest of human beings solely for one singular purpose: the “entertainment” of seeing helpless, defenseless animals tortured to death on video. They’re referred to on the street as “crush” videos, as small animals are typically crushed to death by women wearing spiked heels. Wonderful, isn’t it?
And the U.S. Supreme Court – the highest court in this land, the court of last resort to uphold any sense of human decency and morality in this country – struck down that law – a noble attempt by Congress to prevent the viral spread of savagery and banality that is infecting this country. The Justices refused to create any new exception to the “free speech” granted by the First Amendment. This legal reasoning was wrapped, as always of course, in the swaddling cloth of noble and high-minded constitutional precepts of “First Amendment principles of justice.” This should give readers a clear idea where the court is going to rule on California’s appeal to allow that state to protect minors under 18 from the viral spread of such violence.
I’ll discuss what the U.S. Supreme Court justices have had to say about this case so far, in my next post on this subject.