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Supreme Court OK With Violent Video Games; Porn Still Illegal (for Minors)

Is it hypocritical of the Supreme Court to allow violent video games to be sold to minors, while continuing to ban depictions of sex?

The state of California was set to impose a $1000 fine on anyone who sold violent video games to people under the age of 18. That is, until two lower courts struck down the law, saying it didn't hold up under the First Amendment. The Supreme Court could've refused to hear the case and let the judgment of the Ninth Circuit stand, but instead they accepted the case, which usually means the justices have some thoughts on the matter that they plan on expressing. And in a 7-2 opinion, they upheld the judgment of the lower courts and ruled that video games, even ultra-violent ones, are protected speech.

Antonin Scalia wrote the majority opinion, joined by Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Samuel Alito wrote a concurring opinion, joined by John Roberts, and Clarence Thomas and Stephen Breyer wrote dissents. 

Brown v. Entertainment Merchants Association isn't just about video games. Within the decision, concurring opinion, and two dissents lie a host of issues, from whether pornography is really worse than depictions of violence to whether minors have any free speech rights at all (Clarence Thomas says, essentially, no). There's a discussion of whether the inherent interactive nature of games makes them different from previous media, and an acknowledgement that every medium before has produced a similar panic.

Each time the Court rules in favor of speech, it holds that free speech itself is a social good, regardless of the content of that speech. Yet of course the justices are human and their biases hold—most of them agreed with Scalia that there is nothing contradictory about protecting violence in video games and other forms of entertainment, while banning the sale of pornography to minors and regulating sexual content. And the one justice, Breyer, who pointed out the hypocrisy inherent in that stance, was doing so to argue for upholding the law.

Each time a new medium develops, an attendant moral panic comes along with it. What are books/radio/television/comic books/video games/the Internet doing to our children? The justices in this case spent some time arguing about the nature of games themselves. Does the inherent interactivity of the games make them significantly different than prior media—enough so that they deserve to be regulated differently? Scalia points out that all media are to some extent interactive, while Breyer notes that video games, especially as the technology advances, are uniquely a combination of action and expression. He further points out that that games are excellent teaching tools precisely because of that interactivity. 

Of course video games are different from other media. Or rather, as Kieron Gillen of says, "It's not that videogames are different from other media. It's that they're all other media, plus extra stuff on top."  That extra stuff might be other players on the other side of the world, a movement-sensitive controller or a plastic guitar that turns you into a rock star. 

But a Court that rules that money spent on elections by a corporation counts as speech would be hard pressed to make the argument that a gamer alone in her bedroom is mixing action with expression even if she is jumping up and down and swinging a Nintendo Wii controller. So, does a game change if, as several of the justices expect, virtual reality technology makes it possible for a gamer to actually feel virtual blood splatter as a result of their mayhem? Does it become action as well as expression? Where is the line between reality and fantasy, and do games blur that line?

Robert B. Marks, in The Escapist magazine, noted that the military has for years been using more and more realistic technology to “dehumanize” enemy soldiers. He cited the book On Combat, by Lt. Col. Dave Grossman and Loren W. Christensen, which says that under extreme stress, people tend to revert to instinct—and instinct tends to tell humans not to fire weapons at other humans. After World War II, the army switched to human-shaped paper targets, and the percentage of soldiers who would fire their weapons at others went from 15 percent to about 50. By Vietnam, when the army switched to targets that looked like actual humans, the rate went up to 90 percent. But, Marks pointed out: 

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