Let's Get This Straightened Out

hy not rename it the Landmark Case State? Thirty-eight years ago, one Marvin Miller appealed his conviction on charges of knowingly distributing obscene material, delivered by Orange County's court and affirmed by the California Court of Appeals. The United States Supreme Court, after a yearlong protraction of the Burger court's most fiery polemics, ruled 5-4 to overturn the lower courts' decisions and draw a bolder — if more circumspect — line between speech protected and speech not protected, on grounds of obscenity, by the First Amendment.

Count them, more than a dozen cities and states have legislated to restrict the sale, to minors, of video games simulating graphic violence or sex. Each law has been rendered inert by injunction, nearly all struck down later on by state judiciaries. One bill, authored by California state senator Leland Yee, was heard on appeal by the federal Ninth Circuit, rejected (PDF of the opinion here), then appealed by Yee et al. again; and now John Roberts' Supreme Court will take the case and finally set precedent, likely for a generation.

We might immediately take the philosophical cue: Does media which projects, even exalts, behavior that the public generally reprobates (killing others, having amorous exchanges without privacy) harm us? Literature has inflamed opinion immemorially. A couple of decades postwar, cinema began flexing its muscles to graduate from theatrics and move into a kind of verity that brought audiences violent, shocking, or depraved actions caught on camera.

Why the Motion Picture Association of America is left alone to rate films, long after the controversies of Sam Peckinpah or Martin Scorsese were filed as historic and even quaint, could be because everybody in public office likes to go to the movies, too — but video games involve participants as actors, not merely spectators. Can media harm us? We, and the defendants, ought to resist the Big Question.What limns interactive entertainment is "the fact that you can push a button and make certain horrific things happen," as Leland Yee puts it. And if it is volitional, it may be instructive.

Still, we ought to resist the Big Question. The defendants must, too, if they are to prevail. Some discourse snatching little headlines — "Are violent games free speech?" — have missed the boat. Speech rights aren't identified by positivism (Can you say this?); they aren't withheld until granted but rather protected until the state produces a compelling interest to restrict them and demonstrates that only curtailment will suffice (Can the government stop you from saying this?).

The State of California acknowledges. In last year's Video Software Dealers Association v. Schwarzenegger, the Ninth Circuit flatly stated that "The State does not contest that video games are a form of expression protected by the First Amendment." And Yee volunteers that he will "never going to be the person who stands up and says we should ban these ultra-violent video games."

Here is what California is up to. Ginsberg v. New York, decided in 1968, discriminated between what material with sexual content is obscene for adults and for minors, respectively, allowing states to pass laws which explain why irreverent high school seniors and college kids tuck an issue of Playboy inside a brown paper bag for their friends' eighteenth birthday. And maybe a pack of cigarettes? "We prohibit children from smoking," said Yee's spokesman three years ago. "We prohibit lots of things from children, and we think it's logical that kids should not be able to purchase these games on their own."

Leland Yee's law contains the letter of the Miller Test for obscenity — word for word — but its ends muddle the spirit.Justices, however, devote less attention to all the lots of things that can be prohibited than they do to the actual language of Supreme Court rulings. The test established in Miller v. California for determining obscenity is a three-step, and Yee's law contains the letter — word for word — but its ends muddle the spirit. A lucid Ninth Circuit began its refutation of the defense with a reminder that obscenity, all that which "appeals to the prurient interest," pertains ex vi termini to "sex-based expression — not violent content, which is presumably protected by the First Amendment." Well, what about obscene violence? The inferior court knows its place with regard to precedent: "Circuit courts have resisted attempts to broaden obscenity to cover violent material."

Hence, perhaps, the Supreme Court's agreement to hear the appeal. But not necessarily to validate California's argument. The three-judge panel did reason on sex and violence, insofar as there is a telling difference where minors are concerned. It quoted the Seventh Circuit's ruling on American Amusement Machine Association, et al. v. Kendrick, et al. from nine years ago:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

How many parents would keep their children from watching the punchy slapstick of Tom & Jerry? The poor, antagonistic cat finds himself poked, catapulted, singed, and blackjacked every twenty seconds or so for five minutes; but that roughness is as intrinsic as what moves children to tussle or, once they're older, wrestle or box. Now, what if a few forbidden reels of Fred Quimby's were to be unearthed and a network broadcasted five minutes of two mice, or two cats — or hell, Tom and Jerry — necking? No child is equipped to comprehend the performance, nor would a mother or father stand for it. Many of us may recall the discomfort at an accidental channel-change from cartoons to something as mild as kissing on a soap opera. Does that in and of itself justify Ginsberg? No; it explains why audiences revel in gunplay and car chases but recoil when a skirt lifts.

When the government must show a plain and concrete threat to the public, hunches, suspicions and circumstantial data will not do.Most striking about California's eagerness to "prohibit lots of things" is the transposition of health risks in using tobacco and alcohol to those supposed by playing video games. Dangers of smoking are fulsomely documented and, to varying degrees, ineluctable: if you light up regularly, in several years you might become addicted to nicotine but will develop a ropy cough while your lungs assume the unhealthy color of charcoal. Psychological disfiguration through exposure to simulated or filmed violence remains, according to California's own evidence, mostly conjectural. How many millions of juveniles play the latest Grand Theft Auto or another notorious title? How many budding felons among them? So few as to be as anomalous as in any other comparison of shared activities. And violent crime has been dropping for years, anyway.

So the Ninth Circuit sifted through studies and reports stamped with caveats, and dismissed them all. In one, researcher Craig Anderson nearly experimented himself out of a thesis: "It appears that he abandoned the age aspect of the study, in part, because 'there was a hint that the aggressive behavior results might be slightly larger for the 18 and over group.'" Whoops. When the government must show a plain and concrete threat to the public, and describe it literally in the warning labels California has asked for, hunches, suspicions and circumstantial data will not do.

Yet Leland Yee claims prescience: "I can see that that kind of connection between your action and the consequent behavior is dangerous." Fifteen months ago, the Ninth Circuit was unmoved by predictive psychology. "In evaluating the State's asserted interests, we must distinguish the State's interest in protecting minors from actual psychological or neurological harm from the State's interest in controlling minors' thoughts. The latter is not legitimate." That Yee acted on his reservations by turning his children's gaming monitors toward the bedroom door, so he "could walk by and see what was happening," begs why California has to oblige for parents today.

Publicly, Yee and his fellow statesmen sound confident. The Ninth Circuit's decision, in its deference to Supreme Courts over almost the last half-century, describes precedent that outweighs California Civil Code sections 1746-1746.5 by several million tons of rationale. In the court's citation of rulings within the last ten years, one can foresee a majority of nine justices who will take the opportunity to crystallize, legally, what speculation and impertinence had begun to soften.

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