New York, Sept. 7, 2010
—A California law that would ban the sale of violent video games to minors does not violate the First Amendment and ensures parents can exercise their authority to determine what content is appropriate for their children, according to an amicus brief
written by Columbia Law School Professor Theodore Shaw
The 2005 law in dispute was struck down by a federal appeals court, which rejected arguments that the restrictions the Supreme Court has allowed since 1968 on minors’ access to sexually explicit materials should also apply to violent video games.
The measure defined violent games, in part, as those that appeal to “morbid interests” and are “patently offensive.”
While the electronic game industry prevailed on First Amendment grounds, the brief argues the Constitution sanctions limits on the rights of children to unfettered access to entertainment media.
“Denying the existence of a right of children to obtain violent video games would strengthen parents’ ability to determine what content is appropriate for their children, and would be consistent with this Court’s precedents,” writes Shaw, whose co-counsel on the brief is Michigan State Law Professor Kevin Saunders.
California had argued that violent video games can cause psychological or neurological harm to children. However, the appeals court said the state could show no causal link to that effect. In his brief, Shaw counters there is “particularly compelling” evidence of the effect of violent games. That includes a study in the Journal of Adolescence, which found that teens who exposed themselves to more video game violence were more hostile, argued with teachers more often, and were more likely to get in fights and perform poorly in school.
Shaw also notes how the Court has acknowledged that juvenile minds differ from adult minds, and that children need to be treated accordingly under the law. That was affirmed most recently in Graham v. Florida, decided earlier this year, when the Court ruled life in prison without parole for a juvenile was unconstitutional for non-homicide offenses.
“This case involves much of that same basic science about cognitive development and many of those same wide-held understandings about the fragility of youth,” Shaw writes. “Unlike those cases, however, the matter now before the Court involves a state that has affirmatively embraced those differences and enacted a carefully tailored law in response.”
The Graham decision, the brief notes, acknowledged studies that found parts of the brain continue to mature through adolescence, leaving youths vulnerable to outside influences, including those that promote violence.
“If children are more likely than adults to change in rather fundamental ways with regard to responsibility, care must be taken with regard to the influences that will determine the direction and outcome of that change,” Shaw writes.
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