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Opening Arguments

Obscene absolutists

Though I am a journalist who operates under the umbrella of the First Amendment, might I gently suggest that "free speech" does not trump everything? It is one value that, as important as it is, must compete with other values in a democratic society. Those who always treat it as an absolute risk ignoring dangers that simple common sense should alert them to.

Indiana's Evan Bayh, along with fellow Democratic Sens. Hillary Clinton of New York and Joe Lieberman of Connecticut, is in the middle of an attempt to codify the videogame industry's voluntary rating system, the effect of which would be to hit retailers with $5,000 fines for selling ultraviolent and sexually explicit games to those under 17. For this horrible offense against constitutional principles -- imagine! trying to keep out of the hands of children something like Grand Theft Auto, in which players can assume the identity of a gang member who carjacks, picks up prostitutes and runs over people, and which has downloadable software unlocking hidden sex scenes -- the senators have reaped withering scorn.

Libertarian Glenn Reynolds calls it dumb. Entropy Manor, a blog out of Indianapolis by someone who calls himself a "social conservative," deplores government intrusion into "a role which is properly that of the parents." Seven Deadly Sins writes about the "criminally stupid acts" of the "morality imposters." The story itself at least tries to give the other side, but refers to the three as "senators with presidential ambitions," as if this is just a craven attempt to curry Red State favor.

Some lawyer out there correct me if I'm wrong, but I don't think any Supreme Court in our history -- however "liberal" or "conservative" -- has ever found that obscenity deserves constitutional protection. There have been disagreements over what obscenity is (currently, I believe, local jurisdictions are supposed to define it by their own standards), but it has never been considered free speech in a constitutional sense. So, three senators now want obscenity to include sex and violence directed at children, and I'm supposed to consider this a First Amendment outrage?

I suggest the absolutists consider carefully the words of Illinois Gov. Rod Blagojevich:

"We've already agreed as a society that children shouldn't be able to buy pornographic magazines. We don't allow them to have alcohol or tobacco. It only makes sense to keep videogames that are full of graphic violence and sex out of their hands as well."

And I'd also urge them to focus common sense on the words of Seventh Circuit Court of Appeals Judge Richard A. Posner, whose overturning of an Indianapolis statute in 2001 is said to be the most influential videogame decision:

Posner said the graphic content in videogames, while coarse to many, deserves the same protection as gruesome passages in such literary classics as "The Odyssey," "The Divine Comedy" and "War and Peace."

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture," Judge Posner wrote. "To shield children right up until the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to deal with the world as we know it."

"The Odyssey" and "War and Peace," which include descriptions of violence as part of the whole panorama of human experience, are on the same playing field as Grand Theft Auto, which presents amoral violence as a celebration of the human condition? Not wishing to shield our children from violence and thus leave them unequipped to deal with it requires us let them be so saturated by it that they become numb to its causes and effects? I don't doubt that advocates of control "haven't been able to demonstrate in state cases" that violent games are a threat to public health because they cause violent behavior. But, come on: Don't studies of the effects of TV violence at least offer us a hint?

I'm not suggesting we aren't in tricky territory here. Some people who push this sort of control "for the children" really would like to ignore the First Amendment and limit the speech of everyone they disagree with. But I don't think a constitutional provision meant to provide for robust political debate should be casually trotted out to justify the actions of cretins who don't care if they turn young people into violence-numbed zombies.

Yes, I know it's the job of parents to protect their children. If they don't like that nasty TV show, they should just set the lockout commands. But meaningless sex and gratuitous violence saturate the popular culture -- in music, TV shows, movies, billboards, magazine articles . . . For every entry point parents notice, there are a dozen they miss. Don't they deserve at least a little help?

UPDATE: Glenn Reynolds expands on his opinion that seeking such ratings is dumb. His central point is that videogames are speech "every bit as much as, say, books" and that requiring the ratings would equate to censoring books. Debatable, I think, as much as the notion that the First Amendment should cover such "symbolic expressions" as smearing oneself with chocolate on stage. And while we're stretching the amendment ever thinner to cover more and more, we have politicians in communities across the country thinking it's perfectly fine to regulate election yard signs, as good an example of political speech as you can find. Reynolds also links to the complete text of Posner's ruling, which goes to great lengths to draw a distinction between legitimate control and impermissable censorship. There is much to admire and much to question in the ruling. I would note this:

We have emphasized the
"literary" character of the games in the record
and the unrealistic appearance of their "graphic"
violence. If the games used actors and simulated
real death and mutilation convincingly, or if the
games lacked any story line and were merely
animated shooting galleries (as several of the
games in the record appear to be), a more
narrowly drawn ordinance might survive a
constitutional challenge.

I would say the games today are certainly more realistic than the ones Posner was considering. Wonder what he would consider a "more narrowly drawn" ordinance? Posner also remarks that the videogames sought to be controlled in Indianapolis (in arcades) were but a tiny fraction of the violence children were exposed to. Too true, of course, but should we stop fighting diabetes because it causes only a fraction of the deaths in this country? And he makes the point that "obscenity" has usually been concerned with sex, not violence. That, too, is unfortunately true.


Steve Towsley
Mon, 12/19/2005 - 9:38am

Judge Posner draws a false picture by implying a fine line between the routinization of violence and sex and generations of Quixotes and Candides.

There is a broad stretch of middle ground between a Quixote and a sociopath. I don't believe society's options are all or nothing as Posner suggests.