It's hard to know whether the founders of the American Republic, sober-minded statesman such as John Adams and James Madison, would have enjoyed playing video games like Mortal Kombat. Periwigged and relying on leeches for their medicine and on quill feathers to record their thoughts, Adams and Madison could scarcely have imagined the disorienting wonders of the gaming world.
Yet it was precisely to the Founding Fathers that the United States Supreme Court turned to decide whether a state has the right to prevent minors from buying violent video games.
It was game over for censorship when the court ruled last week in a resounding 7-2 decision that California's 1995 law prohibiting the sale of violent games to those under 18 was unconstitutional.
In Brown v. Entertainment Merchants Association (EMA), the majority affirmed that video games enjoy the same First Amendment free-speech rights as "books, plays and movies" and further that these rights extend to children, at least in terms of access to violent material.
At the heart of the case were such vividly violent games as School Shooter, which allows players to reenact famous massacres, including the Columbine and Virginia Tech killings. School Shooter includes the option of killing yourself before being captured by the police.
"In some of these games, the violence is astounding," Justice Sam Alito observed in his concurrent opinion. "Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws.
"Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed."
As Justice John Roberts noted, another game involves "people actively hitting schoolgirls over the head with a shovel so they'll beg for mercy" - players also "pour gasoline over them, set them on fire, and urinate on them."
Jumping ideological barriers
Brown v. EMA is a fascinating decision in part because it splintered the court's usual ideological divide. In recent years, the court has been split between a conservative majority and a liberal minority, but in this case, liberals and conservatives were on both sides of the fence, with Justice Clarence Thomas on the right and Justice Steven Breyer on the left both articulating strong dissents, albeit on very different political grounds.
Moreover, although conservative Justices Alito and Roberts voted with the majority, they joined together in a concurrence arguing that a more carefully crafted anti-video game law could pass constitutional muster.
So despite the strong statement suggested by the 7-2 decision, at least four justices accept the idea that a ban on certain video games for minors might conceivably be legally acceptable.
The conservatives in the courts tend to frame their arguments in terms of original intent - a fundamentalist reading of the constitution that gives priority to the presumed values of the Founding Fathers and subsequent authors of constitutional amendments.
But the conservatives on the court are also highly deferent to corporate interests, recently supporting Wal Mart in a major sex discrimination case and granting corporations the right to flood the political process with money. As Steven Shapiro of the American Civil Liberties Union told reporters, simply, "It is a pro-business court."
Raising kids the Colonial way
In siding with the video-game companies, most of the conservatives on the court were only too quick to throw originalism overboard. The one exception was Clarence Thomas. In his remarkably radical dissent, Justice Thomas denied that children have First Amendment rights by citing extensive historical sources on child-rearing practices in colonial America.
"The practices and beliefs of the founding generation," he wrote, "establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians. … The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children."
Justice Thomas went on to cite with approval Thomas Jefferson's "rigorous management" of the children in his care.
He was of course correct in observing that children had few if any rights in the 18th century, but this just points up the absurdity of making a distant historical age the absolute arbiter of contemporary policy: If we look to the Founders for advice on child-rearing, should we also follow their lead on slave-holding and the subservience of women?
The case of Sex v. Violence
The liberals on the court, for their part, were divided between a majority of First Amendment absolutists and the lonely voice of Justice Breyer, who spoke on behalf of communal values. As he noted, the courts have long maintained that it was proper to restrict access of sexually obscene material to minors.
During the oral arguments of the case, Justice Breyer asked, "What common sense is there in having a state of the law that a 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old can go in and buy one of these [violent]video games?"
In response to this concern, Justice Scalia, when writing the majority decision noted that the United States does not have "a longstanding tradition … of specially restricting children's access to depictions of violence" and therefore "speech about violence is not obscene." In his own way, he was here expressing a kind of originalism, arguing that because violent material wasn't ever regarded as obscene in the past there is no reason to regard it as obscene now.
But this begs Justice Breyer's forceful question as to why mild smut can be restricted to minors who are allowed to purchase ultra-violent games. As Justice Alito noted in his concurrence, "As a result of today's decision, a State may prohibit the sale to minors of … 'girlie magazines,' but a State must surmount a formidable (and perhaps insurmountable) obstacle if it wishes to prevent children from purchasing the most violent and depraved video games imaginable."
The founding fathers may or may not have enjoyed Mortal Kombat but the ultimate question raised by this case is whether American jurisprudence can still rely on 18th century legal theories to grapple with 21st century problems.
Jeet Heer is a writer based in Regina and Toronto.