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Games Judges Don't Play

The Supreme Court ruled that California can't mandate that children can't buy "Mature" video games without a parent. They rejected the notion of social responsibility by the video game-makers.

The video-game industry has won again in court, insisting on their right to make the most debased gaming experience imaginable and market it to children with little commercial restraint. On June 27, the Supreme Court ruled 7 to 2 against California's law mandating that children are not allowed to purchase 'Mature' video games without a parent.

The political elites are celebrating the Court ruling as a victory for a vibrant First Amendment, rejecting the very notion of social responsibility on the part of the video-game makers and their often-twisted conceptualization of what constitutes 'fun' for children.

Justice Stephen Breyer's dissent asked what should be the definitive question at issue. "What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman,' Breyer asked, 'while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?"

In an opinion concurring with the 'free expression' majority, Justice Samuel Alito at least seemed trouble regarding the content of some of the 'M' games in question, that 'victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.'

Alito also could have considered the promotional videos for 'God of War 3,' for the PlayStation 3, where the protagonist Kratos (the main interactive character manipulated by gamers) graphically, slowly, realistically tears the head off Helios, the sun god. And still he'd suggest the 'right' to sell this to children? Which sick CEO sits in a boardroom and says 'Yes' to ultraviolent scenes like this, knowing children will play these games?

Justice Scalia thought it irrelevant. He replied that Alito 'recounts all these disgusting video games to disgust us – but disgust is not a valid basis for restricting expression.' Yes, freedom of speech means allowing the freedom of repulsive ideas. But that doesn't have to extend to shopping your repulsive ideas to grade schoolers. Why is freedom grievously curtailed when parents have the right to 'restrict expression' to their children by having the video-game retailers only sell the 'adult' games with parental approval?

If that's an untenable violation of the First Amendment, would Scalia rule that it's unconstitutional for movie theatre owners to prevent minors from walking into movies rated R? 'R' requires that an adult accompany the child – the very principle behind California's law, just a small parental hurdle in children's access to disturbing content.

If it's okay to allow them into R-rated movies, why not NC-17? Why not X?

In his dissent, Justice Clarence Thomas rightly argued 'The freedom of speech as originally understood does not include a right to speak to minors (or a right to minors to access speech) without going through the minors' parents or guardians.' When the Founding Fathers wrote the Bill of Rights, they were not advocating that parents shouldn't have authority in the upbringing of their children. That parental-discretion principle ought to be more revered by judges and politicians alike.

In other cases, where the First Amendment isn't being extended to grant children's rights, parents are still in control. California Gov. Arnold Schwarzenegger signed a law in 2004 making it illegal for anyone under 14 years old to tan indoors under any circumstances. No one sued to stop him. (Children from 14 to 18 can tan – with parental consent.) Some 32 states are inhibiting the freedom of minors to tan, and no one objects. In his dissent, Thomas mentioned that minors cannot unilaterally consent to most medical procedures. 'Free speech' – or the freedom of entertainment conglomerates – isn't the principle, so there is no court case.

Conservatives and libertarians who would easily line up with Justice Scalia on this decision should at least want to ponder if they want the federal government to decide how and when individual states have the Tenth Amendment power to make their own decisions about how to protect minors from harm.

Advocates for parents in this case certainly don't expect that every parent is a vigilant watchdog over video-game content. In fact, some are enthusiastic purchasers of whatever the hot game of the moment is. Parent advocates aren't arguing that little Johnny will be inevitably turned into a vicious assassin by playing violent video games. Most twentysomething and thirtysomething gamers, introduced to this gaming genre in their teens, are nonviolent, responsible adults.

But to think the idea that merchants ought to respect parents in restricting access to M-rated games is rejected because of some lofty First Amendment principle is absurd. All that matters is sales and profits and free speech is a most convenient argument for them. This country needs more social pressure on the entertainment merchants to have decency in their boardroom decisions rather than falling back on courtroom decisions.