Courts set high bar for legislating restraints on media
In 2011, the Supreme Court weighed Brown v. Entertainment Merchants Assn., in which California banned the sale of violent videogames to minors. The court struck down the decision, and in writing the majority opinion, Justice Antonin Scalia took a tone that was dismissive, even snide about the idea of trying to legislate media mayhem.
In the past month, there have been calls from Capitol Hill and the White House for a new scrutiny of a “culture” of violence. Over the decades, just the threat of government action regarding violence in movies, music, TV and videogames often resulted in voluntary solutions from the industry.
But in light of the Supreme Court ruling, there is serious doubt much can be done legislatively that would force showbiz to tone it down.
“It is a pretty broad decision, that says that violent expression in creative works is fully protected by the First Amendment,” says Paul Smith, the Jenner & Block partner who argued for the videogame merchants in the Supreme Court case. “While the government may be able to draw attention to things that may be unhelpful, it can’t ban them.”
That doesn’t mean nothing will be done, or that there won’t be more study, or that there won’t be more congressional hearings as part of a “conversation.” Earlier political pressure led to the creation of a ratings system for videogames in 1994, and the V-chip in TV sets coupled with a ratings system for TV shows in 1997.
Now, Sen. Jay Rockefeller (D-W. Va.) is calling for a comprehensive study of videogame and video violence, with the National Academy of Sciences in charge of looking at the links (and, presumably, presenting research that would rise above Scalia’s scorn).
All this pressure could create consternation within the videogame industry. Even if it argues that no causal relationship exists between virtual and real-life violence, the bigger question may be more existential: Why has the culture come to a point where rape, maiming, burning and endless shooting have become entertainment by console?
Yet the debate has a long history of contradiction. And there has been more in recent weeks. California’s then-governor, Arnold Schwarzenegger, signed the violent videogame law in 2005, even though, as attorney Smith pointed out, his image appeared in violent “Terminator” videogames. In his recent autobiography, however, Schwarzenegger wrote, “I kill people onscreen because, contrary to the critics, I don’t believe that violence onscreen creates violence in the street or in the home.” That caveat has apparently informed his post-government return to the screen, in “The Last Stand.”
The National Rifle Assn. was quick to take the entertainment media to task, suggesting that celebrity gun control advocates were part of an entertainment culture that profited from the proliferation of violence onscreen.
Rockfeller’s proposed legislation seems aimed at singling out videogames as different from other depictions of violence (even the movies, comicbooks, TV shows and rap lyrics that were singled out when they first came on the scene). The difference, he suggests, is interactivity. The industry says studies show no link is established, while other orgs, like the American Medical Assn., say that research suggests there has been.
Last year, Rep. Joe Baca (D-Calif.) proposed legislation to slap new labels on violent videogames in the same way that cigarettes and alcohol get warning messages: “Exposure to videogames has been linked to aggressive behavior.”
As well-intentioned as it may be, a campaign to force the industry to cool it also could divert attention to more stringent gun laws and better access to mental health care for those who need it. The White House has called for a “comprehensive” approach, but there is a point at which the conversation gets carried away, and the media becomes the scapegoat.
The Brady Campaign’s Jon Lowy says, “I think after Columbine, there was a great focus on the music of Marilyn Manson. I don’t know the studies, but I would be skeptical if there was a high correlation between listening to Marilyn Manson and committing mass murder.” However, he adds, “There is an extremely high correlation between access to high capacity assault weapons and committing mass murder.”