A Freedom to Frag

This entry comes from June 2011, when a Supreme Court decision announced the day before allowed me a chance to exercise that political science degree and civil liberties muscle with this (too long) essay.

TOWER GROVE — The government can fine a store for selling a minor Camels, can punish a shopkeeper for passing a Playboy across the counter to an adolescent, and can revoke an exemption for a bar that lets a toddler stop by for fried chicken. But when it comes to violent video games, the Supreme Court assured this week that the government can do nothing but grin and frag it.

The message is clear when it comes to slaughtering zombies, knifing drug dealers and celebrating the virtual brutality of Duke Nukem.

Smoke ‘em if you’ve got ‘em, kids.

“Like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium,” wrote Justice Antonin Scalia representing five justices in the majority decision announced Monday. “No doubt a state possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

The Court’s 7-2 decision in Brown v. Entertainment Merchants Association struck down a California law that attempted to ban the sale of violent video games to minors and penalize those who do. The law called for a $1,000 fine to anyone who sold or rented a video game to a minor that was considered “patently offensive.” The court ruled the law was a violation of the First Amendment and free-speech rights, and it virtually unplugs any efforts similar to then-Sen. Hillary Clinton’s in 2005 to slap a $5,000 fine on anyone who sells “violent or sexually explicit” video games to minors. The key words in Scalia’s explanation was that video games, like books and movies and blogs and newspapers, was another mode of expressing ideas. The Court’s protection of laws that keep minors from sexually explicit material does not extend to video games because the First Amendment won’t let it, Scalia asserted. If you’re scoring civil liberties at home:

Violence is an idea.

Smoking is an act.

Pornography is … a politically acceptable villain?

For a loose constructionist, there is a lot to like within this decision. Expanding the protective umbrella of the First Amendment to new forms of media, be it Twitter or YouTube or “Grand Theft Auto,” shows how the Constitution draws strength from its elasticity. The right to freedom of expression did not stop at dialup. The Founding Fathers wouldn’t know a joystick from a walking stick, but the rights they advocated are still applicable at the speed of social media. They grow with our society and our society grows because of them.

For a parent, it’s a decision that allows for parenting to return to the living room. I can help my child decide what is best for him to watch, read or listen to. My 5-year-old has heard foul language in songs. He knows not to repeat it, but because we explain to him why, not because he’s fined for doing so. A few weeks ago, I took the boy wonder to see “Thor,” a PG-13 movie. After lots of conversation with both him and his mother we all agreed that Thor was the superhero movie he could see this summer. He was worried about the face-changing (a bugaboo of his) in “X-Men: First Class,” he thought maybe Parallax was too scary for him in “Green Lantern,” and I was less than thrilled about the machine guns in “Captain America.” “Thor” it was. I was not barred from taking him into a PG-13 movie. The movie theater was not fined for allowing an accompanied 5-year-old with his Thor hammer and his Thor helmet into the PG-13 movie.

Guidelines were offered. Ratings are clearly advertised. The parent made the call. The Supreme Court’s decision asserts, without directly stating it, that parents can do the same when it comes to video games. It’s the ultimate local standard – the home. No legal hammer needed.

But there’s something amiss with the decision, something beyond Scalia’s tortured pun about how “Grimm’s Fairy Tales, for example, are grim indeed,” but also something revealed by that example. By throwing up the First Amendment shield as the reason to protect video games and all the pixilated blood they can splatter, the Court continues to cower from directly addressing violence. They brush it away as an idea, an expression, as if it were a particularly brutal form of performance art. Scalia even says as much by arguing that there is no “long-standing tradition in this country of specially restricting children’s access to depictions of violence.” And why would there be. Violence as video game entertainment is new. Violence is proliferating. Violence is profitable. Writing about rape, showing a rape in a movie and, now, reenacting a rape to get to the next level as in the Japanese video game “RapeLay” is protected. Selling a magazine with a picture of an undressed woman in the middle? Why, by golly, that’s offensive.

“What sense does it make to forbid selling to 13-year-old boy a magazine with an image of a nude woman,” Justice Stephen Breyer wrote in his dissent, “while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

In the majority decision, Scalia said children have been strafed by violence before they knew the definition of the word. He cites fairy tales such as Cinderella (“evil stepsisters have their eyes pecked out by doves”) and Hansel and Gretel (“kill their captor by baking her in an oven”), and required reading like Dante’s Inferno (oh, the horrors of “corrupt politicians … submerged beneath a lake of boiling pitch”) and Piggy’s brutal murder in Lord of the Flies. So that we don’t miss his point, Scalia even includes a helpful “children!” beside Hansel and Gretel.

This stuff, of course, is tame compared to today’s children’s literature, or so Megan Cox Gurdon argued in a recent essay for the Wall Street Journal. A reviewer of children’s books, Gurdon wrote this month that the modern shelf in the children’s corner of a bookstore is “darker than when you were a child, my dear: So dark that kidnapping and pederasty and incest and brutal beatings are now just part of the run of things in novels directed, broadly speaking, at children from the ages of 12 to 18.” Her examples are far more colorful than Scalia’s, and, in large part, discolor Scalia’s argument. Consider the 2010 novel that Gurdon describes, The Marbury Lens, which has its protagonist “drugged, abducted and nearly raped by a male captor.” Things get worse from there. In a 2011 book that Gurdon mentions, a teenage girl’s cutting “turns nightmarish after she is the victim of a sadistic sexual prank.” It’s hard to process which of those events would be more difficult to read – as an adult. The Outsiders seems tame.

“Reading about a homicide doesn’t turn a man into a murderer; reading about cheating on exams won’t make a kid break the honor code,” Gurdon writes. “The argument in favor of such novels is that they validate the teen experience, giving voice to tortured adolescents who would otherwise be voiceless. … Yet it is also possible – indeed, likely – that books focusing on pathologies help normalize them, and in the case of self-harm, may even spread their plausibility and likelihood to young people who might otherwise never had imagined such extreme measures.”

This is what Scalia misses in his examples. The boiling lawyers and savagely beaten Piggy are fictional images cast in the coin of context. They are ideas, metaphors and difficult, if not impossible, to project into schoolyard fantasy. Cutting, abduction, abuse – these are headlines, realities. Some video games, like novels, tout their ability to capture “reality.” This isn’t to say that playing violent video games is going to inspire violence. The Court’s decision and dissent, especially the dissent, covers studies trying to make that connection in depth and writes that not one of the studies show conclusively that violence in a video game “causes minors to act aggressively.” That does not change the possibility that it normalizes violence, and in many cases may desensitize children (and adults!) to it.

In their agreement of the decision but not Scalia’s opinion, Justice Samuel Alito and Chief Justice John Roberts suggest that the Court was too naïve about its view of video games. Alito describes how games can allow players to recreate the Columbine High School shootings. There are others that allow players to put JFK in their crosshairs. This is protected as an idea? An expression?

That too is naïve and it is a conflict the Court ignores.

Violence is not only an idea.

It is an action.

“Justice Alito recounts all these disgusting video games in order to disgust us,” Scalia writes, “but disgust is not a valid basis for restricting expression.”

That depends, apparently, on what you’re disgusted by.


A FEW WEEKS AGO, the boy wonder asked why he could no longer go with me to a bar/restaurant that regularly hosts a radio show I appear on. I had to explain to him that because the neighborhood bar allowed smoking inside it could no longer allow minors.

“But we’re not smokers, Daddy,” he said.

“Right,” I said. “But there will be people smoking in there and they sell cigarettes in there so they cannot have kids in there.”

“Are you going to buy the smokers?”

“No, of course not.”

“Then we’re OK,” he enthused. “They’re not going to sell smokers to you, we’re not going to smoke, and we can just go and have lunch.”

“It’s not that simple,” I tried to explain. “There are rules now that they cannot have kids there because people might be smoking. It is now illegal for them to have kids in the restaurant.”

“What does ‘illegal’ mean?”

“It’s like timeout,” I said. “For adults.”

The smoking ban that took hold in St. Louis on Jan. 2, 2011, did indeed keep my son and me from a semi-regular trip together for lunch. We’d go and he’d eat while I did my appearance on the radio show. With the current smoking ban, however, bars could apply for an exemption as long as they met specific provisions. One was that they didn’t allow anyone younger than 21.

It doesn’t take much to drive around town or search through Google to find other restrictions placed on minors. Three people in the St. Louis area were recently charged with selling Newport cigarettes to minors. In New Mexico, there was a bill in March to reduce the penalties for selling alcohol to minors from 18 months in jail and a $5,000 fine. Selling cigarettes to a minor in Illinois can draw a $200 to $600 fine. And, of course, the selling of pornography to a minor is often a felony. In Salt Lake City about 10 years ago a man was sentenced to 30 days in jail and three years of probation for doing so. You can look it up.

And then there are the annual and sometimes successful witch hunts that attempt to burn or ban books. In 2005, Gerald Allen, R-Ala., a state representative, introduced a bill that would prohibit public school libraries from buying new copies of novels or plays that featured a gay character or were written by a gay author. Out goes Truman Capote’s In Cold Blood, no more Patricia Cornwell bestsellers, and goodbye The Color Purple in any of its versions.

“I don’t look at it as censorship,” Allen said at the time. “I look at it as protecting the hearts and souls and minds of our children.”

The bill died, of course, but it doesn’t erase the attempt.

Protecting the hearts and souls and minds and lungs and emotions of our children takes a village, and sometimes, apparently, it’s OK for it to take legislation. The video game manufacturers should be lauded for being ahead of the curve and voluntarily offering up a ratings system. That puts them on par with the movies, in many ways. If a shop, for example, prohibited a minor from buying a Rated M video game without a parent present than how is that different than me trotting the boy wonder in to see “Thor”? Or, is that now a violation of the Supreme Court ruling? The Court would have no problem with a city keeping a kid out of restaurant, or keeping cigarettes out of the hands of minors, or prohibiting a video store from renting a porno to an adolescent. These kinds of “disgusts” we can limit. These are easy, socially-acceptable, politically valuable battles to wage. Violence, for some reason, has become trickier.

We know it when we see it.

We just don’t know how to rightfully limit who sees it.

In the end, judicial affirmation of parental power is a just thing. According to a report earlier this month, a recent study by the Entertainment Software Association found that the average gamer is 37 years old, and that the average game buyer is 41. The study found that 45 percent of parents play video games with their children “at least weekly.” If a parent who is that active with their child(ren) deems a video game as A-OK than any other ratings – M, T, C or A – shouldn’t matter. The parent should have the say, not the law. Same as it is when it comes to books, movies, music, television …

And that’s ideal. Let the parents do the protecting.

I just want to be able to take my kid to lunch where I want.



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