Supremes Equate Video Violence with Free Speech
This column by ACRU Senior Fellow Robert Knight was published June 29, 2011 on The Washington Times website.
The cultural sledgehammer that’s shattering basic decency in America keeps pounding away. Our enemies must be delighted to see us disarm morally and still expect to be strong, free and prosperous. They know it doesn’t work that way.
This week, we’ve seen the Republican-controlled New York State Senate grant legal recognition to pretend “marriage.” A Wall Street Journal photo makes that case: Two women, one dressed as a groom, celebrate. Because marriage at its core is the union of male and female, a groomless or brideless wedding is an absurd counterfeit.
In a free country, you can pretend to be all sorts of things, but you should not be allowed to use the power of the law to force your delusions on others. The religious “exemptions” that helped sell the law will prove illusory as activists later sweep away any remaining resistance to this radical upheaval.
While New York legislators were busy sharpening legal knives to use against traditionalist schoolteachers, employers and institutions of all kinds, the U.S. Supreme Court in Brown v. Entertainment Merchants Association struck down a California law that bars selling extremely violent videos to children.
In a 7-2 ruling on Monday, Justice Antonin Scalia wrote that the law violates children’s First Amendment rights to buy interactive games in which they vicariously steal, rape, torture and decapitate people to score points. He did not put it that way, of course, in saying that the state had no compelling interest. He blew off studies showing that violent videos correlate to aggressive behavior in some children and denied that reading about violence is different from participating in a full-color, sound-filled, interactive depiction in which the children themselves commit the violence.
Justices Stephen G. Breyer and Clarence Thomas filed the only dissents, arguing that the law was intended to empower parents, not chip away at the First Amendment. The law targets adults who sell this junk to kids. It’s about curbing predators, not disempowering children.
In a concurring opinion, Justice Samuel Anthony Alito Jr., joined by Chief Justice John G. Roberts Jr., argued that the law should be struck down because of vagueness, but he also said this:
“The Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. …
“In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement … dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.”
Hey, parents. How do you feel, knowing your daughters are growing up around boys immersed in this kind of material for hours each day? Not to worry. It’s just like reading Treasure Island.
Justice Alito continued:
“It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.
“The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in ‘ethnic cleansing’ and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.”
Justice Scalia’s argument that children’s literature is often violent ignores the video medium’s visceral impact. “Certainly the books we give children to read – or read to them when they are younger – contain no shortage of gore,” he writes. “Grimm’s Fairy Tales, for example, are grim indeed.”
Yes, they are. But the kids hearing the story are not doing the killing and maiming.
As for interactivity, Justice Scalia dismisses it this way: “The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.”
So, deciding whether to take a certain path or a different strategy is about the same as deciding whether to rape the woman in the video before or after decapitating her?
The court’s opinion also dismissively notes that Congress once tried to do something about violent and suggestive comic books: “Many in the late 1940s and early 1950s blamed comic books for fostering a ‘preoccupation with violence and horror’ among the young, leading to a rising juvenile crime rate. But efforts to convince Congress to restrict comic books failed.”
Yes, but the mere threat of legislation led to the industry’s Comics Code, which cleaned up comic books for years, until the lid came off again in the 1980s. That’s when ’60s-addled adults decided they didn’t want to do the difficult work anymore of protecting children by enforcing even minimal cultural mores. As baby boomers have aged, it’s no coincidence that our culture has become adult-centered, with children suffering collateral damage.
Supreme Court Justice Robert H. Jackson, in a much-quoted 1949 dissent in Terminiello v. Chicago, famously wrote that “the Constitution is not a suicide pact.”
Although the majority in that case rightly upheld the free speech of those even with odious content, Jackson’s warning is worth repeating in light of the video ruling: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
The Constitution is the greatest political document in history and the guarantor of our God-given rights. The First Amendment has proved foundational to maintaining all of our freedoms. Exceptions should be few and necessary.
But in the hands of America’s ruling lawmakers and jurists, the First Amendment is sometimes misapplied as a free pass for dysfunction and decadence.