I open with quote from Justice Antonin Scalia in the news report by Gamespot.
"The most basic principle--that government lacks the power to restrict expression because of its message, ideas, subject matter, or content--is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test."
This statement reveals one of the most basic principles of common law used in the United States: precedence. Violence is not "historically unprotected speech," but obscenity is. Therefore, it is legal for minors to purchase Grand Theft Auto IV in which they could brutally murder a cadre of police officers; on the other hand, it is illegal for a 17-year-old to purchase the uncensored version of Leisure Suit Larry: Magna Cum Laude because there are crude CGI scenes depicting sexual intercourse, if only humorous ones,and both female breasts and pubic hair are visible. Now that I've thought about it more, it does sound a bit absurd.
Interestingly enough, later in the news report, I found something that sounds even more absurd but also ironic in that it too deals with precedence. "Puritans thought children were 'innately sinful and that parents' primary task was to suppress their children's natural depravity." So said Justice Clarence Thomas, citing it as support for the position that the First Amendment was never intended to protect minors' access to speech without the consent of their parents. Excuse me? I was born Chinese, and Confucius taught us that people are naturally good at birth. It looks like the founding fathers had the right idea to separate church and state; I would know how to abide by laws based on Puritan beliefs.Nevertheless, Justice Thomas used a different interpretation of the precedence of the First Amendment to argue his dissenting position.
It seems that so much of our legal system, the very glue of our society, is based on the past. Yet I wonder. How would Thomas Jefferson or Benjamin Franklin react if they saw Grand Theft Auto IV today, or better yet, during the drafting of the Constitution. Would they consider violence in games to be protected speech and obscenity not? Did they imagine that in the future, interactive media would be able to simulate the most gruesome of killings in increasingly realistic ways? Perhaps we place too much burden on the great men in our history.
Perhaps we are not. Reading over something Justice Scalia said, "But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test," we see that he chose his words carefully. "[A] legislature cannot create new categories of unprotected speech." I think my initial impression, as shared in Part 1 of this blog, was partially correct. The most critical legal question might not have been whether violent video games is protected speech or whether it does material harm to children. The point that the state of California had the most difficulty arguing was that it had the right to determine whether violent video games should be unprotected speech.
However, there is legal recourse for citizens opposed to violent video games if the issue should become sufficiently pressing. All it takes is for two-thirds of both the House and the Senate or the legislatures from two-thirds of the states to propose an amendment to the Constitution. Once proposed, only the legislatures or conventions from three-fourth of the states need to ratify the amendment for it to become a supreme law of the land. Lobbyists, start your engines!
Maybe we should add such an amendment to the Constitution. Many Europeans frown upon our system that penalizes digital forms of physical love but does nothing against violence. Now I wonder why obscenity is so bad. I need to read up on the precedence for that.