The rejection by the U.S. Supreme Court of California's video game law was a welcome victory for free speech, but a frustrating defeat for the protection of young people.
In striking down the 2005 law - that was never actually implemented due to legal challenges - the Court continued its campaign to safeguard the First Amendment. Last year, it ruled 8-to-1 against a federal law prohibiting depictions of animal cruelty such as those in videos about dog fighting.
But the 7-2 decision voiding the video game law leaves open serious questions. When should First Amendment privileges be suspended for the protection of children? Should a modern interpretation of "obscenity" include violence and not just sex? At what point will ultra-realistic video games be more akin to actual violence and less like the fiction of an earlier era?
These are troubling issues, about which the Supreme Court remains conflicted.
When it comes to protecting children, society takes a wide range of prudent steps - covering everything from voting, to driving, to drinking. Obscenity laws, too, are different for kids, as affirmed by the 1968 Supreme Court ruling that upheld limits on access to sexual materials by minors.
But Justice Antonin Scalia, writing the majority opinion in the video game case, stressed that depiction of violent acts has never been restricted, even for kids. That may be legally correct, but it is morally flawed.
As Justice Stephen Breyer said in his dissenting opinion, "What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the 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?"
The Court noted that research on the effects of video games is inconclusive. But many types of causes and effects are difficult to pin down scientifically, which is why the debate raged for decades about the dangers of tobacco, and rambles on today about climate change. Psychologists face a particularly difficult challenge in evaluating the impact of video gaming because the technology is evolving so rapidly.
Like the definitions of obscenity, which were so subjective at the time of the landmark 1968 ruling as to include the term "girlie magazines," a reasonable evaluation of video violence may hinge more on intuitive reasoning and community standards than on laboratory results. The fact that the U.S. military uses video games for certain forms of combat training should provide a clue about their power.
Here's the crux of the problem, in the very words of Justice Scalia: "Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct.'" That postulate, when children are involved, is shortsighted.
What does it say about society that extreme graphic violence is acceptable for young people, while sex is obscene?
Justice Samuel Alito voted against the California law despite his concern that the violence in modern video games "is astounding." He said the statute was poorly written, giving too broad a definition of objectionable violent content. However, Alito seemed to suggest that California legislators could draft a new law spelling out more clearly the narrow range of video violence that should be off limits to kids. They should.
Alito wisely added, "developing technology may have important societal implications that will become apparent only with time."
Safeguarding free speech and protecting our children need not be in conflict. However, waiting for scientific evidence of the "societal implications" about which Justice Alito warns, is a game that responsible adults cannot afford to play.
Peter Funt is a writer and public speaker and may be reached at www.CandidCamera.com