Should Minors Have A Constitutional Right To Realistically Violent (But Fun) Video Games?

Last weekend, as the nation tried to come to terms with the mass shootings in Dayton and El Paso, pundits and even the president partially blamed violent video games. This claim has been made before. People tried to blame video games for the Parkland massacre because the shooter was known to play violent video games up to 15 hours per day to escape his depression.

Legislators, either through their own initiative or due to public pressure, may one day propose legislation to control or even ban the sale of certain video games, particularly to children. But doesn’t this violate free speech principles? So today, let’s review a landmark Supreme Court case on this issue and determine whether video games can be regulated.

In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association, which held that violent video games were protected speech under the First Amendment. There, the court invalidated a California law banning the sales of violent video games to anyone under the age of 18. The majority found that violent video games are no different than the violence depicted in protected books and movies. The court noted while video games are interactive, some books also allow interaction where readers can “choose their own adventure” by turning to a certain page depending on their decision.

The majority was not convinced by the studies provided by the State of California showing a connection between exposure to violent video games and harmful effects on children. They found that the research is based on correlation without causation and the studies suffer from admitted flaws in methodology. Finally, the court noted that the video game industry established a ratings system to inform consumers about the games’ content which may make the law unnecessary. The majority concluded that constitutional limits must apply even on governmental action designed to protect children.

Justice Alito’s concurrence, joined by Chief Justice Roberts, agrees that the California law is an unconstitutional violation of the First Amendment. The law is vague because it does not define “violent video games” and other terms with narrow specificity. He also does not believe that the law satisfies the very difficult strict scrutiny test but also acknowledges this analysis might not be appropriate in this case. Finally, he states that playing a video game can be different from reading a book or watching a movie and warns not to quickly dismiss the technological advances in the industry. Today’s most advanced video games have realistic images and sounds and may be virtually indistinguishable from real life footage. Many video games will one day be playable in a three-dimensional setting through the use of special equipment. Also, there are games that let players re-enact mass shootings and sexual assaults.

He concludes by stating that he would not hinder legislative efforts to deal with what some may consider a significant and developing social power. So perhaps a properly framed statute would pass constitutional scrutiny.

Justices Thomas and Breyer separately dissented. Thomas believed that parents had complete authority over their minor children and the government had no business speaking to minors or allowing them access to speech without their parents’ permission. Thus, in light of the historical context of the freedom of speech’s limitation on minors, the ban on violent video games without parents’ authorization is legal.

Justice Breyer’s dissent states that the ban is no more than a modest restriction on expression since children can play violent video games with parent permission. He believes the law would pass a strict scrutiny analysis. First, there is a compelling state interest: passing laws to aid parental responsibilities and ensure the well-being of its youth. Second, the law furthers the compelling interest and there is no equally effective, less restrictive alternative. Breyer is convinced that there is a connection between violent video games and increased aggression.

This case was decided in 2011. At the time, the major video game consoles were the Playstation 2, XBOX 360, and the Nintendo Wii. Since then, all three companies have released newer, more powerful consoles with better graphics, sound, and processing speed. Also, mobile games are becoming more popular.

And new technology may be game changers -– literally and figuratively. Virtual reality technology such as the Oculus Rift, the HTC Vibe and the Playstation VR provides the player with a 360 degree immersive experience. Also, “augmented reality” games gets players out of the house and encourages them to interact with the real world. The game Pokémon GO during its heyday brought out millions of players where they congregated in parks and shopping malls with the occasional flash mob when a rare Pokémon appeared. Unfortunately, this has also resulted in some overly determined players disregarding traffic rules and trespassing in their efforts to catch them all.

Online gaming has also increased in popularity since the Brown decision. The most popular games today are online games such as Fortnite and Minecraft. Some players even stream their games live on Twitch, YouTube, or Facebook. This has led to harassment from some people, particularly to women gamers.

Violent games with adult themes are also some of the best sellers today. This includes games like Grand Theft Auto V, Red Dead Redemption 2, and Mortal Kombat 11. Some of these open world games allow characters to do whatever they want instead of following a pre-set storyline. This includes attacking and killing innocent bystanders and police although doing so has in-game consequences.

Can Brown be overturned today? While this was a 7-2 decision, it was a very delicate one and in some ways was more like a 5-4 decision. Two of the justices in the majority -– Scalia and Kennedy -– are no longer on the court. It is unclear how their successors will decide as the split was not based on party lines. Justice Kagan later said that the Brown decision was the toughest case she decided and was unsure whether her decision was right. Also, it seems that the court today is more willing to overturn its own precedent as it recently did in Franchise Tax Board v. Hyatt.

Also, would a law banning violent video games be effective today? Maybe. But parents have greater control than over video games than they did in the past. Every modern video game console has parental control features that allows them to block their children from playing certain video games.

Also, parents today grew up playing video games in some form and fathers have likely played at least a few violent and other inappropriate games (like Leisure Suit Larry) while growing up. So they will have a better idea as to which games are appropriate for their children. On the other hand, children can be sneaky and resourceful when it comes to bypassing security features. If they want to play a certain video game bad enough, they will eventually find a way to play it.

People will disagree on whether violent video games makes its players more violent in real life. But with people pointing to video games as one of the causes of antisocial and violent behavior, it is only a matter of time before a legislature tries to regulate video games. While Brown v. Entertainment Merchants Association held that video games are protected free speech, it is possible that a law can survive constitutional scrutiny if the law is drafted the right way and addresses how technological advances in video game technology can impact impressionable youth.

This column is originally posted at abovethelaw.com.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at [email protected]. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.