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U.S. Supreme Court Debates Sex & Violence in Kids’ Entertainment

The U.S. Supreme Court is presently debating the legitimacy of a California law that bans the sale or rental of violent video games to underage children. Predictably, the medium of comic books has been invoked in the discussion, sparking painful memories of the 1950s, when he American comics industry was famously imperiled in after it was accused of contributing to the delinquency of minors, resulting in the Comics Code Authority, a body that aggressively self-censored comic book content for decades hence.

In opposition to California deputy state attorney general Zackery Morazzini, video game industry advocate Paul Smith said the California law was part of a series of “adult overreactions” to media that includes popular music, movies and comic books. The Wall Street Journal noted that representatives from those industries have filed briefs asking the Supreme Court to strike down the law.

The Justices are putting forth some compelling questions. Assuming the content itself wouldn’t be censored, why not restrict the sale of adult or “mature” material to minors, as the law restricts the sale of cigarettes and alcohol? Should the participatory nature of violent video games inform the argument? Should such a law stop at video games?The crux of the argument is a legal precedent that says the government can only restrict minors from purchasing “obscene” material — i.e. pornography — while depictions of violence and torture are fair game (no pun intended). Quite understandably, Justice Stephen Breyer wondered aloud, “Now what sense is there to that?”

In response to Smith’s claim that children’s entertainment doesn’t traditionally contain depicts of graphic sex, and that video games should therefore be exempt from similar restrictions, Chief Justice John Roberts put forth a cogent point, referencing the ultra-violent game Postal 2. “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. We protect children from that. We don’t actively expose them to that” even though it’s not sexual.

However, Justice Antonin Scalia was in favor of extending First Amendment protections to video games, but Justice Samuel Alito argued that the framers of the Constitution could not have foreseen that medium and that it would be “entirely artificial” to assume a new technology like video games should enjoy the same protection as, say, books.

Justice Ruth Bader Ginsburg asked, “What’s the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales?”

Justice Sonia Sotomayor continued along that line of thought, wondering if a violent Bugs Bunny cartoon would qualify as harmful. Morazzini challenged her, saying, “Cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to.” Apparently, he’s never heard of anime.

Morazzini’s arguments were further undercut by the recently installed Justice, who asked, “Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?” Morazzini replied, “No, it wouldn’t, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.”

It is true that the distinction between fictional humans and fictional non-humans plays a large role in the standards and practices of the entertainment industry, at least with respect to graphic violence. A person involved with the production of The Walking Dead television series told me that the series’ uncommonly gruesome visuals are made possible by the fact that rules are in place in the television industry that allow such acts to be perpetrated thanks to the tenuous distinction of “monsters,” which includes the plainly human-like zombies.

Most amusingly, Justice Elena Kagan defended Mortal Kombat, saying it’s “an iconic game which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.”

What all the actors’ points have in common is the nature of the material in question, which is visual. Legally, books and (and to a lesser extent, music) remain free of sales restrictions and protracted discussions such as these, but comic books, video games, animation and filmed entertainment are forever mired in controversy. Concerned parties can simply flip through the pages of a comic book or witness the maiming of a virtual avatar on their television to see what can often be shockingly graphic material, while the same cannot be said for books not written by Bret Easton Ellis. What some have argued is that video games offer children active participation — a choice to commit acts of violence against fictional entities both human and other, whereas with comics, films and music, they’re passive observers.

Smith said that California has not put forth “a shred of evidence” to suggest that violent entertainment can have a harmful impact on a child’s development, but Justice Breyer referenced studies and disagreements between researchers that suggest that violent entertainment in some form or another can negatively impact children. As ever, the argument came down to the role of parents in the equation, with Breyer and Smith debating whether parents need the help of law in administering their children’s access to various forms of entertainment.

Obviously, the final decision will be a long time coming.

What do you think? Would it be a blow to Free Speech to prohibit retailers from selling certain games to persons under 18? What about “Mature Readers” comics like those from Vertigo or MAX? If a parent approves of their child playing a game like Postal 2 or reading a comic book like Punisher MAX (or, more to the point, those comics based on violent video games) why can’t they just buy it themselves? What does the “carding” of comics, games and home video mean to you?

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[Via Kotaku]

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