Lack of scientific evidence short-circuits video-game bans

Tuesday, December 13, 2005

Even before a federal trial court judge struck down Illinois’ attempt to ban the sale of violent video games to minors, proponents of such bans knew they had a legal problem. Now, after that ruling, they know their bigger problem is one of science.

In Entertainment Software Association v. Blagojevich, Matthew Kennelly became the latest judge to hold that laws regulating the sale and rental of violent video games to minors violate the First Amendment. Courts considering state laws in Michigan and Washington and local ordinances in Indianapolis and St. Louis County, Mo., have issued similar rulings. Kennelly’s decision, however, leaves no doubt that the critical weakness of such bans is the lack of any scientific evidence that video games cause violent behaviors.

This evidence is necessary, Kennelly held, because video games — even violent ones — enjoy significant First Amendment protection. “Video games are one of the newest and most popular forms of artistic expression,” Kennelly wrote. “They most resemble films and television shows by telling stories through pictures, text, and sound, but they also parallel popular books, such as the Choose Your Own Adventure series, which enable readers to make decisions about how the plot and characters will develop.

“Video games are generally designed to entertain players and viewers,” Kennelly continued, “but they can also inform and advocate viewpoints. They are therefore considered protected expression under the First Amendment.”

As such, Kennelly recognized, video games constitutionally can be regulated only to further a compelling government interest and only if the government has chosen the least restrictive means to further that interest.

Illinois officials argued they had compelling interests in preventing aggressive behavior, preventing psychological harm, facilitating “the maturation of Illinois’ children into law-abiding, productive adults” and assisting parents in protecting children from violent video games. Kennelly agreed these interests are compelling but said regulations of speech designed to prevent anticipated harms must be supported by evidence — not conjecture — that the purported harms are real and that they will be alleviated by the proposed regulation.

Officials defending the Illinois legislation offered several scholarly articles in support of the ban, all of which Kennelly reviewed critically. Finding that, at most, the studies demonstrated a correlation between playing video games and “a slightly increased level of aggressive thoughts and behavior,” Kennelly concluded the officials “have come nowhere near making the necessary showing in this case” because, “[w]ith these limited findings, it is impossible to know which way the causal relationship runs: it may be that aggressive children may also be attracted to violent video games.”

Kennelly then rejected the state’s argument that the ban could be justified by a need to prevent psychological harm to minors. “In this country, the State lacks the authority to ban protected speech on the ground that it affects the listener’s or observer’s thoughts and attitudes,” he wrote. “If controlling access to allegedly ‘dangerous’ speech is important in promoting the positive psychological development of children, in our society that role is properly accorded to parents and families, not the State.”

Kennelly was similarly unpersuaded by the argument that the ban was necessary to assist parents in limiting children’s access to violent games. In rejecting this argument, Kennelly cited studies showing that 70% of parents report being involved in selecting their children’s video games and that other segments of the entertainment industry — namely movies and music — are worse than sellers of video games at ensuring minors are unable to access violent material.

Even if Illinois could establish a compelling interest in regulating violent video games, Kennelly held, the statute would fail because it was not narrowly tailored to further that interest. In particular, Kennelly noted, the vagueness of the law’s definition of “violent” made it likely gamemakers and sellers would err on the side of caution, resulting in self-censorship that would impair “the First Amendment rights of both adults and minors.”

In Entertainment Software Association, Kennelly also struck down an Illinois statute banning the sale and rental of sexually explicit video games to minors. While agreeing a state can regulate minors’ access to obscene materials, Kennelly held such regulation must be consistent with U.S. Supreme Court precedent defining “obscene.” In this case, because the Illinois law defined “sexually explicit video games” more broadly than the Court has defined “obscene,” Kennelly ruled the ban did not survive First Amendment scrutiny.

Illinois Gov. Rod Blagojevich has promised an appeal of Kennelly’s rulings, as well as political pressure on the makers and sellers of video games. The governor’s legal efforts, however, are unlikely to be successful, as the 7th U.S. Circuit Court of Appeals, which would hear the case, in 2001 rejected the video-game ban passed by the Indianapolis City Council.

Even supporters of the laws seemed resigned to the bans’ fate. “I supported the legislation knowing full well that it was going to get overturned because it had been overturned in other states,” State Sen. Dave Syverson told the Rockford (Ill.) Register Star. “This legislation was really more symbolic.”

Symbolic, perhaps, but also unconstitutional. And — unless and until their supporters find better science — video-game bans are likely to remain that way.