The broader legal context also matters here. Video games are a form of speech, which means they're presumably protected by the First Amendment (maybe their narrative is all about killing and maiming, but it's still a narrative.) The Supreme Court has allowed states to ban the sale of only one kind of speech to kids—porn. That ruling, from a 1968 case Ginsberg v. New York, allowed the state of New York to stop teenagers under the age of 17 from buying "girlie magazines" that adults would be allowed to buy. It's the exception to the First Amendment that allows states to regulate obscenity when they think kids will see it. No court has extended that idea to violent content, though. According to Lyle Denniston on SCOTUSblog, six states plus a county, in addition to California, have passed this kind of sale and rental ban, and every time a lower court has reviewed such a law, it's been struck down.
If you ask me, the law gets it backward. I'd pick shielding my kids from violent content over sexual content any day of the week. But of course I can do that without any help from the government. The question laws like California's raise is whether the government should step in when parents don't. Do such laws protect kids whose parents are indifferent to their well-being? Or do they intrude on the family, getting in the way of all those parents who have made the decision that these games are perfectly fine for their kids? "My child is 7, and I don't morally want him to play these games," Ferguson says. If you're morally opposed, absolutely don't let your kid play them!But when we get to the point of letting other people decide this, that's scary."
I argued the opposite side the other day when we talked about this case on the Slate Political Gabfest. I'm not a First Amendment absolutist, and slippery slope arguments often don't move me, so I can't find it in my heart to worry about the great loss of freedom entailed in telling kids that they can't buy their own copies of Grand Theft Auto. They'll survive and so will the gaming industry. But then I thought more about the specifics of this law. To justify a limit on speech, which is what upholding California's law would be, courts have to find that the state has a compelling interest and has used the least restrictive means to achieve it. Let's stipulate for a second that the research on the link between playing games and acting more aggressive is good enough, despite the reasons for skepticism. What about the least restrictive means part? Does it really make sense to bar older teenagers from buying violent games? By 15 or 16, do they really need the state acting as their protector?
In this context, the answer is probably no. The idea that a 17-year-old can go to an R-rated movie alone and then be turned away at the video store seems kind of silly. Which means California's ban is broader than it should be. And if the state lowered the age, say to 14, how many kids would it really affect? Isn't the problem, if there is one, that parents are buying these games for their younger kids, rather than that kids are showing up at the store with $60 and toting the games home themselves? Video games are already labeled to alert parents to the violence inside the box. As Adam Cohen points out in Time, some consoles come with controls so parents can block games they don't want their kids to play. Banning the sale of these games to teenagers is an ineffectual gesture that mostly misses the point. It's not up to the government to get kids to stop playing these games, whether they're harmful or immoral or just a waste of time. It's up to us.
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