Gaming the First Amendment: De-Termin(ator)ing the Constitutionality of State Laws Prohibiting the Sale of Violent Video Games to Minors

Michael Stokes Paulsen

May states ban the sale of violent video games to minors? This is the Minnesota high school "classic debate" topic for early fall -- which is how I happened upon it -- and it looks like many of the arguments will involve the constitutionality of such bans. I get to be a "judge"this Saturday (a position that, fortunately, requires neither presidential appointment nor senate confirmation). Curious, I browsed the cases. Curiously, the lower court decisions so far all go in the same direction: the bans are unconstitutional under the Free Speech Clause of the First Amendment. But the opinions are all rather unsatisfying, tending mostly to follow, more reflexively than reflectively, the first decision out of the box, an unpersuasive 2001 Posner decision from the Seventh Circuit that rests on premises that the U.S. Supreme Court might well reject today.

At the risk of having my own words quoted to me -- and invoked as authoritative -- by some enterprising Balkinization-reading 14-year-old Saturday morning (hmm -- should 14-year-olds' sensibilities be shielded from the pernicious influence of Jack Balkin and his friends?), here are my first thoughts on the issue. (Careful: If you post a response, you might find yourself quoted by high school debaters, too. But they'll want to know your credentials, or they'll be cross-examined ruthlessly by their opponents for invoking dubious authority.)

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The specific "model" for the Minnesota debaters, though they may deviate from it, is the California statute, which a district court struck down in early August in a case styled, appropriately enough, Video Software Dealers Association v. Schwarzenegger. (The Terminator himself is the official defender of a prohibition on minors' access to certain violent media!) The California law bans the sale of certain violent video games to minors. There is no prohibition as to adults. A parent or guardian may provide such games to his or her minor child.

Such a prohibition is undeniably content-based: it is keyed to violent material -- depictions of "killing, maiming, dismembering, or sexually assaulting an image of a human being." The ban might even be thought viewpoint-based. And it clearly regulates expression (or expressive conduct) because of its message, not for reasons unrelated to suppressing its message. The whole point is to suppress assertedly harmful messages. If applied to adults, I can think of no plausible argument in favor of sustaining such a ban under the First Amendment. The games are not (legally) "incitement" in the Brandenburg sense. Perhaps a game or two out there could be thought legally "obscene," under prevailing "standards." (I have no idea if this is the case, not being a gamer, but I suppose I'd know it when I see it.) But in the main, I doubt that this ground could sustain such a ban as to adults. No fighting words, no true threats, none of the "categorical exceptions" to the usual rule of First Amendment protection.

Except one: It limits sales of violent video games to minors. Not only might this permit a broader sphere of regulation / prohibition of games with sexually explicit content -- the issue in some of the cases -- but a prohibition of sale of violent material to minors might well be constitutionally defensible on the same reasoning that government may prohibit minors' access to certain sexually explicit but not-legally-"obscene" material: Protection of minors from exposure to material that government determines may be harmful to minors, absent parental consent.

I know, I know: Such an interest may sound rather quaint. Perhaps it is. But legally, the argument has considerable merit.

In Ginsberg v. New York, 390 U.S. 629 (1968), an opinion written by no less a First Amendment liberal than Justice William Brennan, the Supreme Court held that furthering parents' authority over their minor children's access to potentially harmful material and the state's "independent interest in the well-being of its youth" justified restrictions on material that could be sold to minors without their parents' knowledge and consent, notwithstanding that such restrictions would, as to adults, violate the First Amendment. Quoting a 1963 Tom Emerson article with approval, the Court said: "'Without attemping here to formulate the principles relevant to freedom of expression for children, it suffices to say that regulations of communication addressed to them need not conform to the requirements of the first amendment in the same way as those applicable to adults.'"

Ginsberg was not an obscenity case. The rationale was not that the materials proscribed from being sold to children were not otherwise protected by the First Amendment. Rather, Ginsberg was all about enforcing parental authority to control what their children see, read, hear, and do. It was decided the year before Tinker, and the two are not logically inconsistent. One can agree that students have (certain) free speech rights, such that government may not punish their expression of controversial views without thereby thinking that government violates the First Amendment when it helps parents control their kids' access to materials that parents may think harmful to them.

I am inclined to think that there is no sound reason why the principle upon which the statute was upheld in Ginsberg would not extend to a statute prohibiting the sale of violent video games to minors. Certainly, nothing in the rationale of Ginsberg so limits the principle. Nor is there reason to believe Ginsberg is anything other than good law. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) embraces it as correct, citing it with approval for the broad proposition that "[g]overnment, of course, may punish adults who provide unsuitable materials to children." (My emphasis.) United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) appears premised on exactly the distinction between the government's legitimate interest in protecting children from exposure to (otherwise constitutionally protected) unsuitable material and the First Amendment problem with trying to accomplish this using methods restricting adults' constitutional rights. Earlier, Sable Communications and Pacifica stand for much the same proposition.

The district court in Video Software Dealers Association v. Schwarzenegger recognized all this, and laid out decent arguments for sustaining the California no-violent-games-to-minors-except-through-their-parents law, on the basis of Ginsberg: "The Supreme Court has rrecognized that those still in their formative years must be considered differently under the law. [Citing Ginsberg and Roper v. Simmons] The rationale underlying Brandenburg -- that in a society of free men, men must be free to make even foolish choices -- does not apply unequiovocally to those still learning how to choose." The court dismissed the argument that Ginsberg was only about sex, noting that "[t]he Supreme Court has never expressly considered whether obscenity is . . . the only subject matter that justifies limitation of the First Amendment rights of minors, or whether . . . Ginsberg may serve as a template for other limitations on minors' access to other categories of expression, such as violent videos." The court also noted that regulating minors' exposure to "senseless violent acts" might be "more important than regulating exposure to obscenity."

But then, alas, the Schwarzenegger district court had a failure of nerve when it saw the long parade of decisions, starting with Judge Posner's decision in American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001), marching in the other direction. Posner's opinion, however, makes some highly doubtful moves: He bows in the direction of Ginsberg, but then questions either its continued authority or its correctness, and concludes that bans on sales of violent video games to minors must pass a test of strict scrutiny: "Ginsberg did not insist on social scientific evidence that quasi-obscene images are harmful to children. The Court, as we have noted, thought this a matter of common sense. It was in 1968; it may not be today; but that is not our case. * * * The videogames at issue in this case do not involve sex, but instead a children's world of violent adventures. Common sense says that the City's claim of harm to its citizens from these games is implausible, at best wildly speculative. Common sense is sometimes another word for prejudice, and the common sense reaction to the Indianapolis ordinance could be overcome by social scientific evidence, but has not been. The ordinance curtials freedom of expression significantly and, on this record, without any offsetting justification, 'compelling' or otherwise." 244 F.3d at 579; see also id. at 576 ("The grounds must be compelling and not merely plausible.").

There are several things wrong with this picture. Most importantly, Ginsberg itself unequivocally rejected any requirement of "strict scrutiny" or compelling interest. All that the legislature needed was a rational basis for its judgment (390 U.S. at 639 (sufficient "if it was rational for the legislature to find that the minors' exposure to such material might be harmful"), finding that upholding parental authority and control was clearly a sufficient such basis, and eschewing dependence on legislative findings or social science evidence. Concerning the legislature's "finding" that sexually explicit material impairs "the ethical and moral development of our youth" and therefore "poses a clear and present danger to the people of the state" (!!), the Court in Ginsberg said: "It is very doubtful that this finding expresses an accepted scientific fact." 390 U.S. at 641. The Court noted that "a causal link has not been demonstrated" but that none was required: "We do not demand of legislatures 'scientifically certain crtieria of legislation.' * * * We therefore cannot say that [the statute] has no rational relation to the objective of safeguarding such minors from harm." Id. at 642-43.

A quick perusal of the more than half-dozen subsequent no-violent-vids-to-kids cases following Kendrick (the Posner opinion) shows that they all repeat, follow-the-leader style, the errors in analysis of the line leader. They wrongly apply a "compelling interest" test. They wrongly limit Ginsberg's reasoning to sexual material, rather than recognizing its parental authority rationale. They wrongly require tight-causal-link evidence connecting video games to violence, rather than defer to legislative judgments. In short, none of the lower court cases in this area to date is persuasive in its treatment of Ginsberg. There is a very high likelihood that the Supreme Court would reject the reasoning of all of the lower court opinions, if a case of this kind came before it today.

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Violent video games is not an issue near and dear to my heart. I am, generally, much more interested in student free speech rights in the public school context. For me, Schwarzenegger is less interesting than Bong Hits 4 Jesus (which I also find unpersuasive). (The explanation is probably all autobiographical. I'm not a video game player, but was a snotty, impudent high school kid, always looking for ways to resist school "authorities." I identify more with the Joseph Fredericks of the world.)

But the violent-vids-to-kids issue might suggest some insights for the student-free-speech issue. If Ginsberg and Tinker, of the same vintage, are both right -- and I think they are -- the critical unifying feature must be parental authority over minor children. Thus, it makes sense that laws protecting parental control over their children's upbringing (prohibiting sales of certain material to minors) pose far less a First Amendment problem (if any) than laws asserting governmental control over children's upbringing (prohibiting what students may say in public schools). If parents concur in public school officials' -- government officials' -- imposition of discipline on their minor child, based on his or her snotty, disrespectful, suggestive, or otherwise (arguably) inappropriate speech in a public schooling context, then, perhaps, we should not regard such punitive action, content-based, viewpoint-based, whatever, as inappropriate. The school authorities are, in a sense, acting as parents' agents.

But the lawsuits in these cases are brought, presumably, by parents who do not concur with the school's restrictive or punitive actions as to their (minor) kids. That has been my experience in every case in which I've been counsel: parents, and kids, challenging schools' refusal to permit students to meet for Bible studies during activity periods or after school; or challenging a teacher's rejection of a term paper about the life of Jesus as an inappropriate topic; or challenging a school district's refusal to provide special education services if a child attends a religious private school. I'll go further and embrace the principle as a general matter: If a parent thinks his child should not be punished for his "I know a man who is firm" class president campaign speech (Fraser), for wearing a black armband to protest the war, or for wearing a politically-incorrect, long-on-judgment-short-on-mercy religious-themed t-shirt opposing homosexuality, or even for expressing support for drug use (if Joe Frederick's banner really can be tortured into meaning such a thing), the issue should be viewed much differently than if the parent agrees to the punishment. Where the parent does not concur, perhaps school officials' actions -- government action -- should be understood as restricting parents' free speech rights, as much as students'. There might still be some restrictions on time, place, and manner of expression, arising out of the school context, but a content-based restriction of minors' expression, in schools or out, against the parents' wishes, is a different matter entirely.

Where the parent, with the kid, stands against the government, I generally stand with the parent and the kid. Where the parent, and the government, stand against the kid, I am generally with the parent and the government.
Posted 3:22 PM by Michael Stokes Paulsen [link]