Free Speech and Video Games

In June, the United States Supreme Court struck down a California law that banned the sale of violent video games to minors. Some hailed the decision as a victory for free speech, while others condemned it for either (a) harming children or (b) illogically finding that sexual content may be censored but violent content may not be censored.

For those of you who don’t understand those who hailed the decision, please note that it’s not really about the right to sell super-violent video games to kids. Most of he supporters of this decision have the more general motive of protecting video games as a whole. As gamer myself, I can tell you that we’ve often felt misunderstood. Violent tragedies, like the Virginia Tech shootings, are often reflexively blamed on video games. (Though the shooter in that incident actually wasn’t a gamer, according to his roommate.) So we’re generally glad about any decision that supports the idea that games are speech just like anything else and shouldn’t be treated with special prejudice.

If I were on the Supreme Court, my opinion would go something like this:

1. Free Speech is an extremely important right, and may only be violated with very good reasons.
2. Political speech, wherein individuals express their opinions on politics or other matters of public discourse, is especially important and should be especially protected.
3. Books, movies. music and video games are all forms of speech.
4. Speech which causes an imminent danger may be prohibited. For instance, if a criminal leader tells an underling to murder someone, he may be prosecuted in connection with the murder. Less-direct harm may be considered, but the state’s case weakens dramatically as the harm becomes less direct.
5. Speech which is patently offensive and which is completely lacking in literary, artistic, political, scientific, educational or other value may be considered obscene and thus may usually be prohibited. However, the state generally has a stronger case for prohibiting speech which is illegal due to imminent danger than speech which is illegal due to obscenity.
6. In the case of obscene speech, the state has a stronger case in prohibiting its dissemination to people who do not wish to receive it, rather than to people who do wish to receive it and have affirmatively expressed such a wish. For instance, the state has a much stronger case for prohibiting the display of hardcore porn on public billboards than it does in prohibiting the sending of such porn directly to individuals who have signed up to receive such content (as may be the case with magazines and websites).
7. The state has a stronger case in prohibiting obscene speech from being disseminated to minors than it does it prohibiting the dissemination to adults.
8. There is no clear evidence to show that the type of video games made illegal for sale to minors under the California law now in question actually causes significant harm to minors. Therefore, these video games do not qualify as harmful under point 4 above.
9. Some of the games criminalized under the California law qualify as obscenity under the terms of point 5 above, but some of them do not. Therefore, the law is too broad and must be struck down.

I don’t think I’ve done a perfect job of it, but those are my general thoughts.