A Supreme Double Standard: If Violent Video Games Are Free Speech, Why Aren't Sexual Images?

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Joe Raedle / Getty Images

Video games at Play n Trade in Miami on June 27, 2011

The Supreme Court on Monday struck down a California ban on selling or renting violent video games to minors. The ruling was an important win for free speech, as the court said that violent video games, not matter how objectionable, are works of art in their own right. But the ruling also raised an intriguing question: Why does the court treat violent images and sexual images so differently?

The court's 7-2 decision in Brown v. Entertainment Merchants Association was a firm rejection of the idea that there could be an exception to the First Amendment for extremely violent pictures and graphics. Justice Antonin Scalia, writing for the majority, said it does not matter how "disgusting" video games are because they are still protected speech.

The images are, in fact, often wildly violent and gory. In the game Postal II, players (you guessed it) "go postal" by, among other things, attacking schoolgirls with shovels and decapitating them.

What's more, experts predict that the violence could soon become even more extreme. We are probably not far off from mass-marketed violent video games in 3-D and games that allow players to get sensory feedback from their simulated violent actions. Justice Samuel Alito noted in a concurring opinion that the day may come when "virtual reality shoot-'em-ups will allow children to actually feel the splatting blood from the blown-off head of a victim."

Critics of violent video games cite scientific research suggesting that children who play them may become more aggressive in real life. But the majority on the court insisted that even if video games are harmful — and the research is far from conclusive — that fact would not justify the law. "Perhaps they do present a problem," Scalia said, but there are "all sorts of 'problems' ... that cannot be addressed by government restrictions on free expression." The industry self-polices with a ratings system, like the movie industry's, but it is voluntary.

It is no great surprise that the court refused to accept a state ban on violent video games — even one limited to minors. Last year, in the case of United States v. Stevens, the court had a chance to rule that videos showing extreme cruelty to animals — including ones showing puppies being crushed to death by women in stiletto heels — are not protected by the First Amendment. Instead, the court struck down a federal law banning animal-cruelty videos.

This is classic First Amendment doctrine — even the speech we abhor is protected, even speech the government believes could have negative effects on its audience must be allowed.

The question, however, is why the court does not take this same absolutist approach to speech involving sexual images. In regard to sex, the court has carved out an exception to traditional First Amendment protections.

Justice Stephen Breyer, one of the two dissenters in Brown v. Entertainment Merchants Association, pointed out the court's double standard. "What sense does it make," he asked, "to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a 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?"

What sense, indeed. Breyer went further: "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?"

Another fine question. Breyer pointed out the inconsistency in order to defend the California law. He would have ruled that the video-game ban is constitutional — just as some laws against selling obscenity have been upheld.

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