Kids and violent video games are a hot topic for politicians in many countries but in the US attempts to ban the sale of such games to young people just got a whole lot harder. The US Supreme Court ruled Monday that a Californian law designed to prohibit the sale of violent video games is a breach of the right to freedom of speech — the First Amendment of the US Constitution. Interestingly it was the conservatives on the court who led the charge in striking down the law.

Brown versus Entertainment Merchants Association looked at a 2005 law that imposed fines for sales of games to minors and that required labelling on games deemed to be violent. The law defined “violent video games” as being those that depict human beings or beings possessing substantially human characteristics being killed, maimed, dismembered or s-xually assaulted. The law said that violent video games lead to an increased likelihood of “violent antisocial or aggressive behavior” and “psychological harm” in minors.

Justice Antonin Scalia, the leading conservative on the court, wrote the lead judgment striking down the law. Scalia observed that children’s and teenage literature is full of examples of violence and is not banned. Snow White’s story is as bloody as any violent video game, argues Scalia:

California’s argument would fare better if there were a long-standing tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ’till she fell dead on the floor, a sad example of envy and jealousy.

Scalia also scuttled the argument that there is a link between violent video games and antisocial behaviour by teenagers and children. Studies and evidence presented in the case shows “at best some correlation between exposure to violent entertainment and minuscule real world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a non-violent game,” Scalia wrote.

The Supreme Court’s decision could prove very useful to those in Australia who are fighting attempts by the Gillard government and state and territory Attorneys-General to impose a similar ban in Australia by introducing a rating of 18+ for video games. Home Affairs Minister Brendan O’Connor and his state colleagues believe that violent video games are harmful to children and to teenagers, and this is one of their major rhetorical thrusts in selling the idea of a ban.

The US Supreme Court majority decision in Brown versus Entertainment Merchants Association is a powerful and well-researched contribution to the debate on censorship and how far the state should go in curtailing freedom of speech. The pity from an Australian perspective, however, is that challenges to an Australian ban on violent video game sales to minors will be more likely to succeed because we don’t protect generally freedom of speech in our Constitution.

Peter Fray

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