Professor Robin F. Wilson: Schwarzenegger v. Entertainment Merchants Association

Robin WilsonIn the upcoming Spring edition of the Law Alumni Magazine, Professor Robin Wilson, the Class of 1958 Law Alumni Professor of Law, commented on the recently argued Supreme Court case, Schwarzenegger v. Entertainment Merchants Association. Professor Joshua Fairfield also commented on the case. Wilson’s views, in their entirety, are below:

On a summer night in 2008, four Long Island teens decided to mimic the video game Grand Theft Auto. They needed victims. The boys first mugged a man at a bus stop, beating him and breaking his teeth. Then, after breaking into garages for bats and crowbars, they attempted to carjack two unsuspecting victims. But their spree quickly ended when witnesses called the police, who arrested the teens. For many people, these teens exemplify the dangers posed to children—and others—from easily available, gratuitously violent video games.

Motivated by news of rampaging teens, legislatures in California, Washington, and Illinois have banned the sales of violent video games to minors, only to see federal courts invalidate those bans on First Amendment grounds. Last month, the U.S. Supreme Court heard oral arguments in Video Software Dealers Association v. Schwarzenegger, which grapples with whether California’s ban violates the First Amendment rights of minors. A decision is expected by June.

Legislative bans draw support from a growing body of empirical research suggesting that children who play violent games may become violent themselves. Across a series of studies, playing videogames exerted a “small” effect on physical aggression and a “moderate” effect on aggressive thinking. But these studies are few and imperfect, as the Surgeon’s General’s report on Youth Violence noted in 2001: “[T]here have been none on serious violence, and none has been longitudinal.”

In the real world, even small correlations can lead to big effects. For example, if 1 of every 1,000 players of violent games later demonstrates violent tendencies, then among a million players, approximately 10,000 will demonstrate aggressive behavior who would not have otherwise. Of course, correlation and causation are two different things. Not every teenager who plays violent video games will feel the impulse to imitate the violent acts depicted, as the Long Island teens did.

Still, the strength of the relationship between violent games and aggressive behavior is stronger than even the relationship between homework and academic achievement or between calcium intake and bone strength—two areas where we believe it is rational to promote the underlying behaviors. Indeed, all public health campaigns are premised on promoting or discouraging behaviors that correlate with good or bad outcomes.

Legislative efforts to restrict the access of minors have not fared well to date. A federal district court in 2004 struck down Washington’s law and the Seventh Circuit Court of Appeals struck down Illinois’ law in 2006. Despite this daunting track-record, California nonetheless sought to protect children from exposure to materials lacking substantive value.

Now, the Supreme Court must decide if California’s ban on the sale of violent video games to minors meets constitutional muster. On appeal to the Ninth Circuit Court of Appeals, California argued that it can impose restrictions on minors because of the potential psychological harms caused by violent video games, just as it can restrict minors from purchasing obscene materials under the Supreme Court’s 1968 ruling in Ginsberg v. New York. Declining to extend Ginsberg to violent materials, the Ninth Circuit subjected California’s ban to strict scrutiny and found the state’s evidence less than compelling: the state lacked evidence showing a causal, rather than a correlational, relationship between violent video games and violent behavior.

Ironically, the Supreme Court grappled with the limits of available research in 1968 when it upheld New York’s ban on selling obscene materials to children. In Ginsberg, the Court credited a “growing consensus” that obscene materials harm children even if “a causal link has not been demonstrated” because “a causal link has not been disproved either.” The Court emphatically declared that “We do not demand of legislatures scientifically certain criteria of legislation.”

In 1968, the Court carved out an exception to the First Amendment to advance child welfare, and in a few months we will know whether the Court is willing to do so again.

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