Hey kid, want some constitutionally protected stuff? (Hot Coffee, part 2)

On the other hand, aren’t I sort of making a straw man argument too? After all, the Clinton-Lieberman bill doesn’t call video games obscene and doesn’t try to restrict sales to adults. Their press release says: “Senator Clinton acknowledges that video games are fun and entertaining and does not support any limitations on the production or sale of games to adults. ‘This is about protecting children,’ said Senator Clinton.” It also notes that violence as well as sex is at issue, saying “a majority of parents are feeling increasingly victimized by a culture of violence that makes it difficult to protect their children against influences they find to be inappropriate.”

But the Supreme Court rulings about what is protected under the First Amendment are invariably concerned with sexual material, not with violent material. Further, the Supreme Court ruling in Ginsberg vs.New York (1968) — which directly addresses regulating the sale of sexual material to minors and presumably would underpin any defense of a video game law — discusses only pornography and obscenity as justification for allowing restrictions on sales to minors.

So if Clinton and Lieberman intend to use Supreme Court precedent to defend their bill, it seems they will need a novel way to explain why First Amendment protection does not extend to (nonsexual) violent material.

Ginsberg vs. New York upheld the conviction of the owner of a New York stationary store and luncheonette (I think that’s the 1968 equivalent of a convenience store) who sold two “ ‘girlie’ magazines” (good old 1968!) to a 16-year-old boy.

The decision quotes a New York Court of Appeals case (Bookcase Inc. vs. Broderick) that argued for degrees of First Amendment protection depending on different groups involved: “[M]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined. Because of the State’s exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults” (emphasis added).

The ruling then quotes another New York Court of Appeals decision (People vs. Kahan): “While the supervision of children’s reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults” (emphasis added).

The court then explains its defense of the New York law that called prohibited material “a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the people of the state.” The court wrote: “It is very doubtful that this finding expresses an accepted scientific fact. … But obscenity is not protected expression and may be suppressed without a showing of the circumstances which lie behind the phrase “clear and present danger” in its application to protected speech” (emphasis added).

It is hard to see how any of this would apply to video games, which are plenty violent but rarely depict sex or nudity. All of the Ginsberg ruling’s examples for upholding the New York law involve pornography or obscenity, and the court has defined obscenity in terms of sexual material. (The Miller vs.California obscenity standard, written in 1973, obviously wasn’t yet formulated when Ginsberg was decided. But the previous standards defined in Roth vs.United States [1957] and Memoirs vs.Massachusetts [1966] likewise were concerned only with sexual material.)

The only Ginsberg passage that seems relevant to defending a video game law is the quote from the Court of Appeals’ Bookcase vs. Broderick case that restrictions for kids are justified because of the state’s “interest in preventing distribution to children of objectionable material.” Here “objectionable” doesn’t necessarily have the same sexual connotations that “obscene” does. But if the Ginsberg ruling was intended to address more than just sexual material, the majority justices should have listened to Abe Fortas’ dissent: He writes that the court “here justifies the conviction of Sam Ginsberg because the impact of the Constitution, it says, is variable, and what is not obscene for an adult may be obscene for a child. This it calls ‘variable obscenity.’ I do not disagree with this, but I insist that to assess the principle — certainly to apply it — the Court must define it.”

Until the court does define what is obscene for a child, and until violence becomes part of that definition, Clinton, Lieberman and others trying to regulate the sale of video games will have a tough time passing constitutional muster.

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