Tuesday, May 11, 2010 - The Progress & Freedom Foundation Blog

Will the Supreme Court Protect Kitten-Crushing Videos & Virtual Kid Porn but Not Video Games?

The Supreme Court recently announced that it will review a California law regulating the sale of violently-themed video games to minors. The case under review is Schwarzenegger v. Entertainment Merchants Association. In it, the Ninth Circuit Court of Appeals struck down a California law which prohibited the sale or rental of "violent video games" to minors. I'm inclined to agree with Julie Hilden when she notes that "it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights -- rights that extend far enough to reach 'violent' video games." I hope that we're both wrong and that the Court took the case to instead affirm the free speech rights of game creators and users (and yes, even minors), but the justices could have just left the Ninth Circuit ruling be and that would have been settled.

Anyway, let's think this through here. What if the Supremes took the Schwarzenegger case to overturn the Ninth Circuit and to uphold the right of state governments to regulate the sale of "violent" video game content, however that's defined. Let's consider such a potential holding in light of two other free speech cases handed down over the past few years.

In the 2002 case Ashcroft v. Free Speech Coalition, the Court struck down provisions of the Child Pornography Prevention Act of 1996, which had attempted to criminalize computer-generated depictions of child porn. And just a few weeks ago, in United States v. Stevens, the Court struck down a federal law that criminalized the creation or sale of videos showing animal cruelty. The law that the Court overturned was particularly concerned with "crush videos," which, according to the Court, "feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish."

Thus, if one assumes that the Supreme Court took the Schwarzenegger case to reverse in favor of state regulators, the justices on our highest court would essentially be saying that it's just fine and dandy to create virtual depictions of children being raped or videos of real kittens having their heads crushed by naked women in high heels, but we'll be damned if we let a kid buy a copy of Halo 3 !

Does that make any sense? I sure can't find the logic in it, but perhaps someone can enlighten me. Because, honestly, even though I am as about as hard-core of a First Amendment defender as you will find, those two other cases still make me a bit queasy and really put my free speech fanaticism to the test. By contrast, I have a very hard time believing that junior is going to be mentally damaged for life by playing a few more levels on Ninja Gaiden Sigma 2, Batman: Arkham Asylum, or X-Men Origins: Wolverine. Indeed, I can easily imagine a day when I would let my kids (when they are older teens) take their own money and buy one of those games themselves. But I could never imagine a day I'd want them seeing virtual kiddie porn or kitten-crushing videos.

posted by Adam Thierer @ 1:00 AM | Free Speech , Supreme Court , Video Games & Virtual Worlds