Supreme Confrontation: Games, Violence, and the Law

April 28, 2010 - One of the most significant consequences of the debate over the artistic merits of videogames comes in the form of legal restriction. When the Supreme Court considers the State of California's appeal of the rulings against Leland Yee's bills criminalizing the sale of violent videogames to minors, it will be an argument based on this wedge of uncertainty. The bill's ability to criminalize the sale of a videogame centers on their classification as "harmful material," which the state defines as something that "describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

Yee's bill makes this definition even more dire, describing videogames as "any electronic amusement device that utilizes a computer, microprocessor, or similar electronic circuitry and its own monitor, or is designed to be used with a television set or a computer monitor, that interacts with the user of the device."

If games are devices, then the state has the right to oversee the ways in which they are sold to ensure there are no deleterious effects from their use. If they are art, the state can have no say because art is a form of free expression. In saying that games are just games and arguing they should be enjoyed as self-contained products, many of us have become unwitting advocates for Yee's point of view. It's for this reason the debate about games as art matters, and why any prominent voices attempting to define the medium from the outside-in must be rebuffed.

The Supreme Court case involves two bills, the first of which would fine retailers $1,000 for the sale of a violent game to anyone under the age of 18. The second bill would require all games deemed as "harmful material" to carry a two-inch black sticker with "18" printed on it in white letters. These games would have to be kept in separate areas in a store where minors would not have access, similar to the way pornography is cordoned off in a video rental store.

The state's attempt to assert prohibitive power comes from the assertion that exposure to violent media causes violence in people under the age of 18. The bill makes two essential arguments about violent causation, claiming minors are "more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the brain, and to exhibit violent antisocial or aggressive behavior." Even when exposure to violent games does not cause violent behavior, the bill states it causes players to "suffer psychological harm from prolonged exposure to violent video games."

The American legal system is founded on the principle of innocence. A negative cannot be proven in absolute terms, so the burden of proof lies on the prosecution to demonstrate their claim beyond reasonable doubt. The cornerstone of Yee's documentation of his claims comes from the California Psychiatric Association, which cites some general statistics from the Attorney General's Youth Violence Report in 2000. This report cited exposure to violent media as one of twenty-seven possible influences on youth violence, which also included socioeconomic status, low IQ, divorce, and gender (i.e. most violent crime is committed by men). It also cites a meta-study that pulled conclusions from 3,500 published studies, the majority of which indicated "a small but significant long-term correlation between viewing television violence in children and later aggression."

Last year, I spoke about the effects of violent media on children with Cheryl Olson, co-director of the Center for Mental Health and Media at Harvard and author of Grand Theft Childhood. She pointed out how tenuous and inconclusive much of the scientific inquiry has been.

"There are no systematic studies of people who have harmed, or attempted to damage, people or property to see if their use of videogames (or other media) is different from the general population," Olson told me. "My own research suggests an association between bullying and playing videogames that are mostly violent - but this is what's called a correlation, not evidence of cause and effect."


Further, most studies of the effects of media violence measure short-term aggressive behavior. One study published by the American Psychological Association showed that children who had recently played a violent game would play with their toys in a more aggressive manner immediately after. This is as close to proof as the proponents of Yee's bill have come. There is no causative evidence to suggest behavior towards toys or other inanimate objects translates into violence towards other human beings. Yee's conclusions are dramatic and serious, but the evidence with which he makes his claims is murky, and has been for decades.

One countervailing fact that should not be dismissed is the marked decline in youth violence during a period when video game violence has flourished. Whatever effect exposure to violent media has on people under the age of 18, there is no evidence to suggest it has translated into dangerously violent behavior. Juvenile violent crime in America decreased by 22-percent for men between 1999 and 2008, according to a Department of Justice report. Again, no one can ever prove a negative, and general statistics like these are influenced by a large number of variables, but they do offer hard statistical rebuke to people seeking data to support a predetermined conclusion. Yee's bill asserts that violent media poses a threat to the greater good of society and the state. Violence has decreased significantly in a period of great increase in media violence, from journalist beheadings on YouTube to castrations in Manhunt 2.

While the rhetoric about media violence is often charged and obfuscated, there are serious consequences at stake for the videogame industry. Keith Boesky, former president of Eidos and current principal at the consultancy Boesky & Company, described a "chilling effect" that the law would have on retail game sales.

"Retailers will always act on the safe side. It's hard to determine what's going to be subject to regulation under this or any kind of restrictive law," Boesky told me. "This one talks about violence against humans or humanlike figures, which could be Ratchet & Clank as much as it could be Grand Theft Auto."