Violent Video Games and The US Supreme Court: The Legacy of Brown v EMA (2011)

06/13/2016 03:30 pm ET Updated Jun 13, 2017

Our lives are littered with milestones that, looking back, remind us of how much time has passed and how quickly we are slipping toward the grave! Many of these are personal...marriage (my wife and I are celebrating 14 years this June), birth of a child, graduation, death of a loved one, etc. But working in the field of video game effects there is a very different milestone: the Brown v EMA (2011) Supreme Court decision.

Five years ago this month, the US Supreme Court decided a case examining whether the sale of violent video games to minors could be regulated. The California law attempting to criminalize the sale of violent games to minors was authored by state senator Leland Yee and, in a twist of wonderful irony, signed into law by then-governor Arnold Schwarzenegger. The very same Schwarzenegger who made his fortune on bloody action films loved by teens, and returned to making them after his tenure as governor.

The interesting thing was that, despite a history of celebrating free speech, US law hadn't entirely clarified whether the government could regulate violent content in speech. This led to kind of a weak spot in which moral entrepreneurs could attempt to push for regulatory/censorship legislation in the name of "protecting the children." Which is what was largely responsible for dragging various social scientists into this debate.

Then, as now, the scientific case for a link between violent games and "harm" to minors was a weak one, as consistently recognized by the lower courts. But that didn't stop some scholars from making sensationalistic claims, including the American Psychological Association, which behaves more like a professional guild selling a product (psychology is wonderful!) than an objective scientific organization (which it is is a professional guild, one that I'm a member of for the record.)

The majority decision in Brown v EMA upheld the opinions of the lower courts. Video games enjoy 1st Amendment protections just like any art. Minors also enjoy 1st Amendment protections that are not easily cast aside. And the Supreme Court correctly reaffirmed that the scientific evidence for "harm" just wasn't there with the classic line "These studies have been rejected by every court to consider them, and with good reason..."

Looking back now, Brown v EMA was one of the truly momentous crossroads for this field, perhaps the defining turning point that it needed. What did it accomplish?

First, of course, Brown v EMA was crucial in the protection of free speech. The impact of Brown v EMA became clear in the aftermath of the horrible Sandy Hook shooting in 2013. The hyperbole on video games that followed that shooting by 20-year-old Adam Lanza was a textbook case of a moral panic in progress. Ultimately, an 11-month investigation would reveal that Lanza was more a fan of Dance Dance Revolution than he was of violent games. In the interim, Brown v EMA stopped dead several senseless efforts at video game regulation/censorship that followed in the wake of that shooting.

Second, the case woke up a lot of people, scholars, politicians and the general public to the fact that video game science was not as clear as some (such as the American Psychological Association) had tried to advertise it as being. In the case, groups of scholars wrote amicus briefs both in support of and against the California legislation (this would turn nasty when several scholars supporting California wrote a paper claiming they had more expertise than their opponents and, as such, should be believed more. This bit of nonsense was ultimately debunked by several other scholars not involved in either amicus brief.)

Since the Brown v EMA decision, it has become clear that there are serious methodological problems in the field, as well as problems of publication bias and, ironically, a certain degree of aggressiveness by some scholars in promoting a rigid and moralistic view of video game effects (for example, one group of scholars smeared anyone who disagrees with them by comparing them to holocaust deniers). Other research has found that, far from being supported by a majority, there is considerable disagreement both in the general public and among scholars about whether violent games are a problem for society. Much of this disagreement, predictably, falls along age and generational lines (i.e. old people don't trust video games). Even among scholars and clinicians.

Brown v EMA also has a weird corollary in that it exposes the observation that, oftentimes, those who promote themselves as moral crusaders often prove to be astoundingly amoral individuals. Schwarzenegger would ultimately prove to have some bizarre family problems kept quiet for years. But more spectacularly, Leland Yee, the author of California anti-game legislation, despite being concerned about virtual guns, would end up pleading guilty to corruption issues that involved, among other things, the attempted illegal sale of real guns including rocket launchers. You can't make stuff like this up. These folks would join other anti-game crusaders such as Eliot Spitzer and Rod Blagojevich among those with spectacular crashes due to their own moral failings.

Someone might reasonably ask "Why not let the government regulate/censor violent games even if the evidence is shaky? What's the harm?" The harm is two-fold.

First, most censorship efforts begin with some form of prima facie argument for protecting society in some form. Often censorship advocates start by identifying a "vulnerable" group, in this case youth (although there's no evidence that youth are especially vulnerable to this type of media), but in the past women and minorities have also been portrayed as "vulnerable" or impressionable to media influences. But once government begins to control speech, the bureaucracy is unlikely to stop.

Second, there's the issue that opening the door to video games being regulated/censored will inevitably spread to other media. One of the leading anti-game scholars has published other work suggesting that reading passages from the Bible describing violence increases aggressive behavior in much the same manner this scholar claims violent games do. So should we have warning labels on religious texts such as the Bible or Ramayana? Do we restrict the sale of these "violent" texts from minors? Does this eventually lend support to fringe calls to censor sacred texts?

The Supreme Court has said that restriction of speech, even that accessible to minors, is inherently dangerous to democracy unless there is evidence that such speech presents a clear, present danger to the health of society. It is now clear that even ultra-violent games, whether we like them or not, present no such danger. The Supreme Court made the right call in Brown v EMA and, in one small way, helped to protect one pillar of American democracy.