The United States Supreme Court has heard plenty of First Amendment cases running the spectrum from school prayer to pornography. In fact, they’ve heard 61 of them. Today, however, marks the first case they’ve heard on violent video games, taking on the case of California’s ban on the sale of violent video games to minors. Although the ban has been law for 5 years now, a series of legal challenges has made it a nonstarter and it hasn’t affected the video game industry.
Most states simply require parental consent for minors to purchase games rated for mature users (rated M). Obviously this doesn’t stop young people from accessing violent games that they borrow from friends or play without their parents’ supervision. As most critics of California’s law have pointed out, a ban on the sale of the games would most likely have a limited impact on kids’ actual exposure to the games. Parents who consent to their children buying violent games will most likely just make the purchase on their behalf and unsupervised use will go on as it has for years.
The effectiveness of the law, though, isn’t up for debate. The real issue is the application of the First Amendment the relatively new medium of video games. The 1973 Miller v. California case defined obscenity and determined a relatively narrow range of speech that isn’t protected (as determined by the so-called Miller Test):
Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
Right. So it’s one thing to apply this test to pornographic materials (although there are still quite a few who would argue that the Miller Test is too vague), but quite another to apply it to video games that aren’t specifically pornographic. Thus, the Court spent most of Tuesday divided between parental rights, the safety of minors, the 1st Amendment, and states rights.
As the Los Angeles Times reported,
But in a case that seemed to break the usual liberal-conservative alliances, Justice Antonin Scalia clashed with Roberts and Breyer and argued that the 1st Amendment’s protection for freedom of speech has never been applied to restrict violence in the media…Scalia insisted that since the nation’s founding, depictions of sex could be banned, but not depictions of violence and torture.
So what does all of this have to do with a blog on Ed Tech? The students we’re educating are exposed to everything from rotten.com to front line war footage every day. They are also playing highly immersive, violent games. And, as with the mountains of content on the Internet, some good, some great, much utter garbage, it’s incumbent upon us to teach digital citizenship to our students. We aren’t responsible for teaching them not to play Postal 2 (one of the games at the center of the Supreme Court arguments), but rather to teach them to clearly separate the wheat from the chaff, the good from the bad, the fantasy from the reality, the social norms from computer simulations that have no consideration for such norms.
As educators, we are in very good positions to evaluate whether our students are able to make those distinctions. In most cases, they do remarkably well, although getting them to find reputable sources on Google remains a challenge. Today’s students are unfortunately pretty jaded and study after study has struggled to find conclusive evidence that violent video games lead to deviant behavior. However, regardless of the outcome of this case or our personal feelings on the matter, we have a responsibility to be aware of our students, their ideas, their thoughts, their concerns, and their environments.
Video games, both violent and light-hearted, are a reality for our students. It’s worth at least a passing thought about how this will affect how they learn and interact and how we can connect to the motivating factors of the games.
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