It’s called the First Amendment, Mr. Thompson

I usually ignore Jack Thompson, the South Florida lawyer who has taken it upon himself to keep the crusade against violent video games going strong. Every time he rails against a game, or files a lawsuit blaming a game for some crime, or calls for legislation restricting sales of violent games to minors, I shrug it off. After all, the courts have repeatedly and emphatically ruled that such laws are unconstitutional; that video games are fully entitled to First Amendment protection; and that studies purporting to show that violent video games lead to violent behavior are worthless.

But when he gets judges to go along with his battles in my back yard (well, in the same state as my back yard), that’s too much.

Thompson is trying to get the game Bully blocked from being released on Oct. 17. He calls Bully “arguably the most dangerous game ever made.” He bases his argument on Florida’s nuisance statute: “All nuisances that tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals are misdemeanors of the second degree…” And Circuit Court Judge Ronald Friedman is taking the bait! He has ordered Take-Two to send him a copy of the game and have it be shown to him, saying the game “may be so bad that something has to be done.”

Good lord, people. Should we ban The Simpsons because Bart uses a slingshot? (Thompson on slingshots: “The most lethal weapon of choice Bully is the slingshot or ‘wrist rocket.’ So deadly is this weapon that it cannot be sold in most states, including Florida, to anyone under 18 years of age. … Such a weapon, glamorized for use in Bully, can easily get through any security check at any school in America, given its non-metallic components.”) Or because Dolph, Jimbo and Kearney — the Springfield Elementary bullies — put Milhouse in a shopping cart and push him down a hill? (Thompson: “ ‘Screenshots’ from Bully, provided by Take-Two to their cooperative media, now show the hero sticking the heads of classmates into dirty toilets, thereby giving them ‘swirlies.’ “) Maybe Wal-Mart should pull the Karate Kid DVD from its shelves — surely the movie encourages impressionable teens to take up karate and terrorize the school with crane kicks. Come to think of it, Heathers is pretty dangerous, too.

I’m not a law expert, but the nuisance statute seems so subjective and vague that I can’t believe it hasn’t been challenged. (Can Jack Thompson claim that the “annoy the community” prong is satisfied because he’s complaining — therefore someone in the community has been anoyed?) Leaving that aside, the statute is clearly written as a means of regulating gambling and prostitution/porno establishments:

Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people … or shall be frequented by the class of persons mentioned in 1s. 856.02, or any house or place of prostitution, assignation, lewdness or place or building where games of chance are engaged in violation of law or any place where any law of the state is violated, shall be deemed guilty of maintaining a nuisance

It’s hard to see how that statute can be applied to a video game. Even if you could, it would be very difficult to say the the first or third prongs (“annoy the community” and “corrupt the public morals”) apply to Bully but not to The Simpsons, Karate Kid, Heathers, and the thousands of other movies, TV shows, and books that depict bullying or other school violence. And arguing for the “injure the health of the citizens” prong would require proving that Bully is likely to cause violence. About which see below.

Thompson is trying a novel legal strategy to make an end run around the First Amendment. But courts have repeatedly found that video games are protected speech, so waving around the nuisance statute isn’t enough. (The judge could accept Thompson’s public nuisance ploy, but Take-Two would immediately challenge the ruling on First Amendment grounds.)

To try to block the release of Bully, then, Thompson would have to do one of two things: 1) Get the court to say Bully is obscene, because obscenity is not protected under the First Amendment. This strategy will fail — the Supreme Court has defined obscenity only in terms of sexual material. No court has considered violent material as obscene. (It’s worth noting that Thompson’s fight against 2 Live Crew in the early 90s succeeded because a court found the group’s lyrics were obscene — not because Luther Campbell was found to be a public nuisance. This tack wouldn’t work against a “violent” video game, hence the nuisance strategy.) 2) Successfully argue that blocking the game serves a compelling interest, in this case to protect players’ and the community’s well-being. To do that, he would have to prove his oft-stated assertion that video games cause violence.

Let’s review what the courts have said about research purporting to show that video games cause violence or harm young minds:

American Amusement Machine Association v. Teri Kendrick (2001):

The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive, entertainments. It is highly unlikely that they are more harmful, because “passive” entertainment aspires to be interactive too and often succeeds. When Dirty Harry or some other avenging hero kills off a string of villains, the audience is expected to identify with him, to revel in his success, to feel their own finger on the trigger. It is conceivable that pushing a button or manipulating a toggle stick engenders an even deeper surge of aggressive joy, but of that there is no evidence at all.

IDSA v. St. Louis County (2003):

The County’s conclusion that there is a strong likelihood that minors who play violent video games will suffer a deleterious effect on their psychological health is simply unsupported in the record. It is true that a psychologist appearing on behalf of the County stated that a recent study that he conducted indicates that playing violent video games “does in fact lead to aggressive behavior in the immediate situation … that more aggressive thoughts are reported and there is frequently more aggressive behavior.” But this vague generality falls far short of a showing that video games are psychologically deleterious.

VSDA v. Norm Maleng (2004):

the Court finds that the current state of the research cannot support the legislative determinations that underlie the Act because there has been no showing that exposure to video games that “trivialize violence against law enforcement officers” is likely to lead to actual violence against such officers. Most of the studies on which defendants rely have nothing to do with video games, and none of them is designed to test the effects of such games on the player’s attitudes or behavior toward law enforcement officers. Where the studies do involve exposure to video games, the subjects are often asked to play games selected by the researcher and are then evaluated for behaviors that serve as proxies for actual aggression. Assuming, for sake of argument, that the frustrations inherent in learning a new game or console system are not responsible for any measurable increase in hostility, neither causation nor an increase in real-life aggression is proven by these studies.

ESA v. Granholm (2005):

this research did not evaluate the independent effect of violent video games, and thus provides no support for the Act’s singling out of video games from other media. … A cursory review of the research relied upon by the state shows that it is unlikely that the State can demonstrate a compelling interest in preventing a perceived “harm.”

ESA v. Blagojevich (2005):

Defendants have come nowhere near making the necessary showing in this case. First, they have offered no evidence that the violent content in video games is “directed to inciting or producing imminent lawless action.” Rather, the only evidence in the record is that video games are designed for entertainment. And second, the evidence they offered regarding the purported effects on minors of playing violent video games does not even approach Brandenburg’s requirement that violent video games are “likely to” produce “imminent” violence. …Indeed, defendants have failed to present substantial evidence showing that playing violent video games causes minors to have aggressive feelings or engage in aggressive behavior. At most, researchers have been able to show a correlation between playing violent video games and a slightly increased level of aggressive thoughts and behavior. With these limited findings, it is impossible to know which way the causal relationship runs: it may be that aggressive children may also be attracted to violent video games. … there is barely any evidence at all, let alone substantial evidence, showing that playing violent video games causes minors to “experience a reduction of activity in the frontal lobes of the brain which is responsible for controlling behavior.” …

In this country, the State lacks the authority to ban protected speech on the ground that it affects the listener’s or observer’s thoughts and attitudes.

ESA vs. Hatch (2006):

This Court’s review of the article reveals it to be completely insufficient to demonstrate an empirical, causal link between video games and violence in minors. … The State itself acknowledges, both in its submissions and during its counsel’s oral argument, that it is entirely incapable of showing a causal link between the playing of video games and any deleterious effect on the psychological, moral, or ethical wellbeing of minors. The State’s concerns are inchoate. It is impossible to determine from the data presented whether violent video games cause violence, or whether violent individuals are attracted to violent video games.

ESA vs. Foti (2006 — preliminary injunction):

Defendants contend that the legislative record contains social science evidence demonstrating thta violent video games are harmful. It appears that much of the same evidence has been considered by numerous courts and in each case the connection was found to be tenuous and speculative.

Has Judge Friedman not read these rulings? Does he think Thompson is privy to some new, cutting-edge research that no court has seen before? What’s the deal?

– October 12, 2006

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