Danielsaurus

The National Youth Rights Association’s Take on Brown v. EMA

A very good analysis all around of the Supreme Court’s decision, but this bit especially stuck out:

Another key issue that is pervasive in all of the opinions is the role of parents. Parental rights—the right of parents to raise their children as they please free from interference from the state—is an issue that comes up frequently in discussions for the legal rights of minors. The California law at issue provides explicitly that parents (and aunts, uncles, grandparents, and legal guardians) can purchase or rent violent video games for their children. This is all that Justice Thomas needed to conclude that the law was constitutional. He drew on the historical record, starting with New England Puritan’s treatment of children, noting that in the 1800s parents would regulate what books their children would read and that parents could force their children to work for whomever they pleased (and parents could steal their children’s wages), and observing the strict degree of control Thomas Jefferson exerted on his daughters’ lives (via regular letters) to conclude that the framers of the constitution could not have believed that children have an independent right to be spoken to. Under Thomas’s view (as noted by Scalia), it would be constitutional to pass laws requiring parental permission to attend church, to attend political rallies, or to do just about anything.

High Drama in the Supreme Court

The First Amendment Center shares a small glimpse behind-the-scenes of this morning’s Supreme Court decision.

On a side note, also highly interesting are earlier pieces that the Center published about the background of the case in November 2010, including summaries of each justices’ (likely) opinion on the matter and an account of Justice Antonin Scalia’s “strong questioning”, shall we say, of the reasoning of California’s original law during oral arguments.

Finally, Gene Policinski, in his analysis of today’s verdict, considers the case as ultimately coming to be about weighing “concern against certainty — concern over what violent video games may do to children vs. the majority’s demand for ‘certainty’ that the games are harmful.” In his view, the Court’s decision came to rest “on the majority’s refusal to create another exception to First Amendment free-speech protection, even for those under age 17, without historical precedent […] or credible scientific proof of direct harm to children.”

(Via Katrina Moncure.)

A Letter to the Nation’s Video Gaming Youth

Asawin Suebsaeng, writing for Mother Jones in a letter addressed “to the nation’s young gamers”:

I know you are no longer satisfied by the rantings of Cave Johnson, the eccentric dead billionaire in Portal 2. I’m aware you cannot countenance another 30 levels of Angry Birds. I sense that, just for once, you want to see something hemorrhage like the old days. Well know this: the judicial branch has not forgotten about you.

“Youth Have a Legitimate Interest in Making Choices”

The Youth Free Expression Project, in response to the Supreme Court’s decision earlier today:

In a victory for free expression advocates everywhere, the Court recognized that government has the power to restrict children’s speech rights “‘only in relatively narrow and well-defined circumstances’… [rather than] free-floating power to restrict the ideas to which children may be exposed.”

The impulse to ‘protect’ children by restricting what they can read, see, and hear is pervasive, and the decision issued today makes it clear that vague assertions about harm, or social disapproval of certain kinds of material, do not justify government restrictions. That also applies to books in public schools and libraries, which are of course challenged regularly. […]

Whether it’s video games, movie, comic books, or music, parents and youth have a legitimate interest in making choices about what is appropriate without unwanted and unwarranted state interference.

Pennsylvania Federal Appeals Court Upholds Students’ Right to Mock Teachers

Another recent win for children’s and teenagers’ First Amendment rights – though it is unfortunate many might see the case, too simply I’d maintain, as encouraging uncivil behavior.

U.S. Supreme Court Rejects Ban on Violent Video Games for Children

The Supreme Court issued their ruling today in the case of “Brown v. EMA” – and their decision to reject a California law regulating “violent” video games serves to ensure that the medium will remain, for the time being, covered under the First Amendment. Writing the Court’s majority opinion, Justice Scalia cited how video games, like protected books, plays and movies before them, “communicate ideas through familiar literary devices and features distinctive to the medium”¹ and thus are protected under the basic principles of freedom of expression. Scalia was joined by Kennedy, Ginsburg, Sotomayor and Kagan, while Alito and Roberts filed a concurring opinion (agreeing with the overall ruling, though differing on the reasoning) and Thomas and Breyer filed dissenting opinions.

In the majority opinion, Scalia wrote that the reasoning behind the law was unjustifiable:

Depictions of violence, Justice Scalia added, have never been subject to government regulation. “Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, recounting the gory plots of Snow White, Cinderella and Hansel and Gretel. High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence. […]

“No doubt a state possesses legitimate power to protect children from harm,” he wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

It’s clearly an interesting (and in my opinion valid) judgment, and one that seems to appropriately dimensionalize video games as a complex and nuanced medium – a vehicle for content, rather than content of itself. And while much of the media coverage of the decision will likely revolve around video games and the gaming industry, it’s important to note that the decision also very clearly – if perhaps unintentionally – makes a strong case for children’s and youth free speech rights, going quite beyond what many expected to validate children’s abilities to deal with a complex world.

Scalia’s majority opinion seems to uniquely recognize (at least to some degree) that children and youth have some individual agency in actively discerning and interpreting violence in video games. Briefly present in his judgment, though as a mainly corollary point, is a recognition that children have throughout history and indeed regularly today encounter violence in many mediums, including literature – yet this has not kept them from actively filtering and (if I may borrow a a phrase from Dr. William Corsaro) “creatively interpreting”² violence in their own consumption of it.

This image of children as active agents – and of their ‘consumption’ of media as a two-way, creative and multidimensional process – contrasts notably with the dissenting opinions filed by Justices Thomas and Breyer, who each opposed the decision on different grounds.

Breyer’s Dissent: Video Games and Violence

Justice Breyer dissented by noting the research studies and expert opinion that show a positive association between violent video games and aggressive behavior:

“Unlike the majority,” Justice Breyer wrote, “I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children.”

He goes on to spend a majority of his dissent elaborating on this research and arguing for its validity in upholding California’s law. What is curious about it, though, are the particular studies and expert opinion he relies on. While at first the research may seem conclusive, if you comb through it – as Drs. Cheryl Olsen and Lawrence Kutner have, indeed, in their book Grand Theft Childhood: The Surprising Truth About Violent Video Games – you’ll find a startling lack of support for the premise that violent video games inflict definite harm on children. A “positive association” between violent video game play and aggressive behavior is far from indicative of causation, and doesn’t at all demonstrate that the video game medium has a particularly “unique potential”³ for harming children. Indeed, the research suffers from a lack of definitional clarity on a range of things: like what constitutes violence in video games, what an “image of a human being” may be, the virtual context within the game that violent behavior may happen in, and how much of this violence is encourages versus simply allowed by the game mechanics, particularly in open-world, “sandbox”-type video games.

It leaves me simply puzzled that a Supreme Court Justice can draw such a clear conclusion from a body of research that is truly so incomplete and conflicted – especially as Breyer clearly was exposed to a lot of the research, as evidenced by the multiple-page listing of studies included as an appendix to his opinion, yet simply failed to critically examine or contextualize any of it.

Thomas’s Dissent: Children’s Free Speech Rights?

Justice Thomas’s dissent, meanwhile, seems to be even more puzzling and superficially drawn:

Justice Thomas said the drafters of the First Amendment did not understand it to protect minors’ free speech rights.

“‘The freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Justice Thomas wrote.

But this is a truly flawed and unproven interpretation of the First Amendment, as noted by Justice Scalia as well:

Justice Scalia, who shares with Justice Thomas a commitment to interpreting the Constitution in accord with its original meaning, parted ways with his usual ally on this point. “He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas.

Scalia further elaborates on this point when considering California’s decision as a whole⁴:

Instead, the State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence.

There are many interesting back-and-forth exchanges like this between the opposing sides, with the most fascinating ones happening essentially within footnotes between Scalia and Thomas’s filed opinions. While this Supreme Court case wasn’t specifically about children’s and parental rights, there is a kind of parallel debate about them happening in the background, playing out implicitly in the various opinions – with most of Thomas’s dissent, as Scalia critiques, “devoted to the proposition that parents have traditionally had the power to control what their children hear and say.” And while this central power isn’t ever challenged, Scalia differs from Thomas in distinguishing between laws which enforce parental prohibitions from violence and laws which censor children from violence without preexisting parental invitation (“[the law’s] entire effect,” Scalia writes, “is only in support of what the State thinks parents ought to want”), and he notes the intermixed tension in California’s law between “addressing a serious social problem and helping concerned parents control their children.” He also strongly upholds the idea that all mediums, including video games, enable “interaction” and “participation”, at least to some degree – leaving the reader or player to “identify with the characters, […] judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.” Notably, Scalia does not exclude children from this, thus implying that they are (in many respects at least) just as capable as their parents of evaluating and interpreting literature and other media.

For a decision not directly about children and their rights, this is a fairly bold opinion of them as well as their capacities for Scalia and the others to put forth. And while the Court’s ruling doesn’t in the end directly challenge the extent of parental authority over children, it does go some distance in unraveling the nuance of where it may apply and in making sure laws aren’t made indiscriminately in service of it.

I suppose, for now, that’s about the best we could hope for.