Blog: Could violence become ‘obscene’ in law?

Monday, April 26, 2010

In agreeing to review a federal appeals court decision that invalidated a California violent-video game law, the U.S. Supreme Court has a chance to decide whether the concept of obscenity can extend to violent-themed materials or will remain rooted in hard-core sexual materials.

Obscenity refers to a category of hard-core pornographic materials that appeals to shameful interests in sex, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Ginsberg v. New York (1968) extended the concept of obscenity by introducing the notion of “variable obscenity” — meaning material could be constitutionally protected for adults but deemed obscene for minors.

California argued in the lower courts that the Ginsberg variable-obscenity standard could be applied to violent video games such as Grand Theft Auto, Postal 2, Duke Nukem 3D and others that unquestionably depict violence. The state law — based on a range of obscenity standards — defines a violent video game as one that appeals to deviant or morbid interests in minors, is patently offensive and lacks serious value.

The 9th U.S. Circuit Court of Appeals refused to extend the obscenity concept to violence. “The Supreme Court has carefully limited obscenity to sexual content,” the court wrote, adding that “circuit courts have resisted attempts to broaden obscenity to cover violent material as well as sexually-explicit material.”

Now, in Schwarzenegger v. Entertainment Merchants Association (08-1448), the Supreme Court has the chance to reiterate that the variable-obscenity standard should stay confined to sexual expression.

In its petition to the Supreme Court, the state of California wrote: “This Court should consider whether extremely violent material can be obscene as to minors even without a sexual element, and whether Ginsberg should thus be extended to apply to such material.”

Violent themes are present in numerous works, including the Bible. Extending the obscenity concept to violent material would do lasting violence to the First Amendment.


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