violent video games

T H E BIG PIC T U R E : JU S T IC E BREYER’S D IS S E N T IN B R O W N v. E N T E R T A IN M E N T M E R C H A N T S A S S O C IA T IO N

Martha Minow*

When the Supreme Court announced its decision in Brown v. E n ­ tertainment Merchants Tw ’w,* 1 First Amendment mavens and media industry spokespersons rejoiced. But Justice Stephen Breyer’s striking and solo dissent showed what the nation lost with the decision. He stressed how the decision took away from parents the ability to limit purchases by their child of “a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.”2 Exhibiting Justice Breyer’s distinctive at­ tention to reality, respect for democracy, and perception of the big pic­ ture,3 the dissent adheres to established precedent while insisting on candor, evidence, and common sense. His dissent illustrates respect for different actors — legislatures as well as courts, states as well as the federal government — in a constitutional democracy. It also stakes out space for moderate regulation in the face of substantial but incomplete evidence of serious risk.4

What Should We Know About Violent Video Games? Video games are one of a series of new media generating concern

about potential harms to young people. In this way, video games are like comic books, jazz, rock ‘n ’ roll, television, and live role-playing games, each of which has generated charges of danger to children’s health and development.5 Are efforts to regulate sales of violent video games just a product of periodically recurring moral panic, or do they reflect warranted concerns about a new danger? At the Supreme Court, a majority of the Justices found a California law constitutional­ ly defective in its effort to restrict the sale or rental of violent video

* Morgan and Helen Chu Dean and Professor of Law, H arvard Law School. 1 131 S. C t. 2729 (2011). The name of the case changed between argument and decision as

Governor Edmund G. Brown, Jr., succeeded Governor Arnold Schwarzenegger. 2 Id. at 2766 (Breyer, J., dissenting). 3 “Big picture” is defined as “the entire perspective on a situation or issue.” Big Picture,

M E R R IA M -W E B S T E R , http://www.merriam-webster.com/dictionary/big%20picture (last visited Sept. 28, 2014) [http://perma.cc/C889-EH8M].

4 A similar approach can be described as “an ounce of prevention,” “the precautionary princi­ ple,” or “taking steps to preserve the status quo pending further information.” See generally CASS R. Su n s t e i n , L aws o f F e a r : Be y o n d t h e P r e c a u t io n a r y Pr i n c ip l e (2005).

5 See La w r e n c e Ku t n e r & Ch e r y l K. Ol s o n , Gr a n d T h e f t Ch i l d h o o d : T h e Su r p r is in g T r u t h Ab o u t Vi o l e n t Vi d e o Ga m e s a n d Wh a t Pa r e n t s Ca n Do 29-56 (2008).

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games to children. 6 The word “game” may make light of the kinds of violence at issue: players in violent games are invited to maim and kill images of humans using machine guns, swords, axes, and other weap­ ons; victims can be dismembered, urinated on, and set on fire, generat­ ing realistic images of blood and damaged body parts as well as im­ ages of victims pleading for mercy. Players receive rewards for triggering violent and degrading actions. 7 It is understandable that policymakers worry about exposing children to such graphic depictions of violence. Yet violence has always been a part of literature, includ­ ing children’s literature.

A majority of the Justices joined Justice Scalia’s opinion for the Court in finding that the First Amendment protects video games. 8 These Justices analogized violent video games to violence in Grimm’s Fairy Tales, The Odyssey, Lord of the Flies, and comic books. 9 Justice Alito, joined by Chief Justice Roberts, concurred in the judgment and found the law impermissibly vague, 10 and Justice Thomas dissented, seeing the First Amendment in light of the views of the Founders, who saw no rights of minors as listeners or rights to speak to minors. * 11 In his dissent, Justice Breyer takes on the task of addressing what could justify regulation of video games and what other reasons defend the law ’s constitutionality.

Unlike the majority, Justice Breyer identifies special features of video games, including the physical action and interaction upon which they depend. Video games, he notes, are particularly effective in de­ veloping habits and rewarding the participant. 12 He discusses how the Armed Forces rely on video games as evidence of their power in train-

6 CAL. CIV. C o d e §§ 1746-1746.5 (West 2009). The law covered games that give players the option to kill, maim, dismember, or sexually assault an image of a human being in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or mor­ bid interest of minors,” that is “patently offensive to prevailing standards in the community as to w hat is suitable for minors,” and th at “causes the game, as a whole, to lack serious literary, artis­ tic, political, or scientific value for minors.” Id. § 1746(d)(1)(A).

7 See Petitioners’ Brief at 43, 46-47, Brown, 131 S. Ct. 2729 (No. 08-1448); see also Brown, 131 S. Ct. at 2748-51 (Alito, J., concurring in the judgment) (joined by Roberts, C.J.); id. at 2764- 65, 2769 (Breyer, J., dissenting).

8 Brown, 131 S. Ct. at 2733 (2011) (majority opinion). 9 Id. at 2736-38.

10 Id. at 2742-51 (Alito, J., concurring in the judgment). 11 Id. at 2751-61 (Thomas, J., dissenting). 12 Id. at 2767-70 (Breyer, J., dissenting). Justice Alito’s opinion also devotes attention to this

question. Id. at 2748-51 (Alito, J., concurring in the judgment). At oral argument, Chief Justice Roberts commented: “[I]n these video games, the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child’s moral development.” Transcript of Oral Argument at 26-27, Brown, 131 S. Ct. 2729 (No. 08-1448), http://www.supremecourt.gov /oral_arguments/argument_transcripts/o8-i448.pdf [http://perma.cc/4FMZ-8V7D].

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ing and cultivating habits. 13 He notes that game-based rewards for aggressive play could be no less effective with children but with less desirable results. 14

Justice Breyer turns to social science studies on this point. Here he does much more than rely on studies cited by the parties and friends of the Court. He reports on the results of a search of peer-reviewed aca­ demic journals, a search “on the topic of psychological harm resulting from playing violent video games” that he conducted with the assis­ tance of the Supreme Court Library. 15 Displaying his characteristic candor, Justice Breyer acknowledges the existence of studies supporting and studies failing to support or rejecting the hypothesis that violent video games are harmful. 16 Indeed, facing up to uncertainty and dis­ agreement amid potentially serious risk is a notable virtue of Justice Breyer’s thinking in other contexts. 17

He offers two instructive ideas in dealing with the numerous and conflicting studies: (1) he turns to experts engaged in reviewing the field and in conducting meta-analyses (“studies of the studies”) who find that these establish harm; and (2) he uses the conclusions of experts and the meta-analyses as sufficient basis to respect the California legislature’s view. Stringent constitutional review forbids passing the buck to the legislature, but he argues that the resolutions and joint statements of research organizations, alongside studies of studies, supply enough rea­ son for judges to respect legislative facts, involving technical matters, even in First Amendment cases. 18 Justice Breyer’s approach contrasts sharply with the m ajority’s view, which announces its own assessment of the studies as failing to establish harm from violent video games suf­ ficient to justify regulation. 19

Justice Breyer’s use of social science steers a thoughtful path and re­ sists the temptations to select only those sources that reinforce his con­ clusion or to claim omniscience in settling scholarly disputes. Justice

13 Brown, 131 S. Ct. at 2767 (Breyer, J., dissenting). The educational power of video games to instruct a player in how to follow commands, how to play a role, and how to forge an identity is widely studied and increasingly influences education in formal and informal settings. See JAMES Pa u l Ge e , Wh a t Vi d e o Ga m e s H a v e t o T e a c h U s A b o u t L e a r n i n g a n d Li t e r a c y (rev. ed. 2007); Ka r l M. Ka p p, T h e Ga m i f i c a t i o n o f Le a r n i n g a n d In s t r u c t i o n (2012).

14 Brown, 131 S. Ct. at 2767 (Breyer, J., dissenting). 15 Id. at 2771 (appendixes to the opinion of Breyer, J., dissenting). 16 Id. at 2769-71. His commitment to transparency leads to the unusual step of including two

appendices with his dissent, displaying the titles of studies that support (114) and studies that do not support (34) the hypothesis of harm. He also distinguishes longitudinal and experimental studies, id. at 2768, and causal and correlation studies, id. at 2768-69.

17 See St e p h e n B r e y e r , B r e a k in g t h e Vic io u s Ci r c l e : T o w a r d E f f e c t i v e Ris k Re g u l a t io n (1993); St e p h e n B r e y e r , R e g u l a t io n a n d It s R e f o r m (1982).

18 Brown, 131 S. Ct. at 2770 (Breyer, J., dissenting). 19 See id.

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Breyer’s approach offers a model for informed, modest, yet rigorous use of social science research in the midst of controverted judicial reli­ ance on expertise. 2 0 He shows enough knowledge to organize and re­ port the findings of different types of studies and enough humility to rely on expert assessments of the disputed results. He models a judi­ cial stance of respect for elected officials who also have access to ex­ pert views. Mindful of contested research results, he relies on the evi­ dence of risk to reinforce reasons for modest precaution.

Wh y States Can Pr o t e c t Minors The state’s precaution at issue in the case, as Justice Breyer repeat­

edly notes, is modest. 21 Justice Breyer considers social science evidence only as an aid in addressing the doctrinal question: did the state have a sufficiently compelling reason to justify restrictions on the sale of mate­ rials protected by the First Amendment? His opinion is precise in ap­ plying prior precedents. It also is candid in identifying “protection of children” rather than “depictions of violence” as the relevant First Amendment category, despite the majority’s effort to treat protection of children as unprecedented. The majority tries to set aside one obvious precedent, Ginsberg v. New York, 22 which approved restrictions on the sale of sexual material that would be obscene from the perspective of a child. 23 Throughout his opinion, Justice Breyer questions why chil­ dren’s exposure to sexual material is more worthy of concern, more easi­ ly defined, and more valid as a justification for state regulation than ex­ posure to intense violence. In so doing, he grounds his analysis in the C ourt’s prior constitutional analysis. He surfaces the Court’s broader view in Ginsberg that the “regulation[] of communication addressed to [children] need not conform to the requirements of the [F]irst [A]mendment in the same way as those applicable to adults. ” 24

Justice Breyer emphasizes that a decision ruling for the state would not involve creating a new category of expression unprotected by the First Amendment but instead would fall within permissible regulation. By underscoring that the video industry itself rates games based on

20 See John M onahan and Laurens Walker, Judicial Use o f Social Science Research, 15 LAW & HUM. B e h a v . 571 (1991). On dangers, see Patrick E. Higginbotham, Introduction: A B rief Reflection on Judicial Use o f Social Science Data, 46 LAW & CONTEMP. PROBS. 7 (1983); M ar­ tha Minow, R ea d in g the World: Law an d Social Science, in 2 TRANSFORMATIONS IN AMERICAN L e g a l H i s t o r y 13 (Daniel W. Hamilton & Alfred H. Brophy eds., 2010).

21 Brown, 131 S. Ct. at 2766, 2771 (Breyer, J., dissenting). 22 390 U.S. 629 (1968). 23 Brown, 131 S. Ct. at 2735. 24 390 U.S. at 638 n.6 (quoting Thomas I. Emerson, Toward a General Theory o f the First

Amendment, 72 YALE L.J. 877, 939 (1963)) (internal quotation mark omitted), quoted in Brown, 131 S. Ct. at 2762 (Breyer, J., dissenting).

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what would be inappropriate for children,25 Justice Breyer draws at­ tention to w hat truly is at stake in the case: can a state ban sales of a product to minors — leaving sales open to adults — which the produc­ ers themselves deem unsuitable for minors?26 Nothing in the law lim­ its adults’ access to violent video games. Parents and other adults can purchase the games for children and adolescents. Minors can have ac­ cess to games owned or rented by their families and friends. But without the law, parents have little ability to restrict their children’s access to the material.

Justice Breyer agrees with the majority that video games include sufficient expressive content to trigger strict scrutiny review under the First Amendment,27 but he nonetheless stresses the long-recognized compelling state interest in protecting the parental claim to authority in directing the rearing of one’s own children, with laws aiding that responsibility.28 Why do parents need the state’s help here? Again, Justice Breyer attends to the reality of family lives. Parents need to get help through the state’s restriction on sellers because “5.3 million grade-school-age children of working parents are routinely home alone.”29 Industry supporters may argue that the violent games are meant for adults and suggest restrictions on advertising targeting chil­ dren.30 Yet it is difficult to imagine the Court rejecting California’s

2= Brown, 131 S. Ct. at 2764-65 (Breyer, J., dissenting) (noting th at the industry “has promul­ gated standards and created a review process, in which adults who ‘typically have experience with children’ assess w hat games are inappropriate for minors”); see also E SR B Rating Process, ENT. SOFTWARE Ra t in g Bd ., http://www.esrb.org/ratings/ratings_process.jsp (last visited Sept. 28, 2014) [http://perma.cc/5MEU-EMCY].

As California underscored in its brief defending the law, the Court has permitted regulation of speech reaching children in other contexts. See Petitioner’s Brief at 13-15, 20-21, Brown, 131 S. Ct. 2729 (No. 08-1448) (citing Morse v. Frederick, 551 U.S. 393 (2007); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Bd. Of Educ. v. Pico, 457 U.S. 853 (1982); FCC v. Pacifica Found., 438 U.S. 726 (1978); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Tink­ er v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)); see also United States v. Williams, 553 U.S. 285 (2008); New York v. Ferber, 458 U.S. 747 (1982).

26 See Brown, 131 S. Ct. at 2766 (Breyer, J., dissenting) (“The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, w ithout a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.” (ci­ tation omitted)).

27 Id. at 2765. 28 Id. at 2767. The Court is not always consistent in respecting parental guidance. See M ar­

tha Minow, The Role o f Families in Medical Decisions, 1991 UTAH L. R ev. i . 29 Brown, 131 S. Ct. at 2767 (Breyer, J., dissenting) (citing De p ’T. OF COMMERCE, CENSUS

Bu r e a u , W h o ’s Min d in g t h e Ki d s ? Ch il d Ca r e Ar r a n g e m e n t s : Sp r in g 2005/SUMMER 2006, at 12 (2010)).

30 See, e.g., Henry Jenkins, Reality Bytes: Eight Myths About Video Games Debunked, PBS, http://www.pbs.org/kcts/videogamerevolution/impact/myths.html (last visited Sept. 28, 2014) [http://perma.cc/5AAY-MSUM] (“While most American kids do play video games, the center of

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rule against selling violent games to youth would be more open to re­ strictions on advertising appealing to children. Regulating advertising is hardly a less restrictive alternative to address a state’s powerful in­ terest in supporting parents in their fundamental right to guide and educate their children.31

Meantime, the vast majority of sales of violent games to minors are in fact made to their parents.32 This fact would seem to mitigate con­ cerns about potential burdens from California’s law permitting sales to adults but not minors. It also, though, supplies the reason why defer­ ring to parents is not sufficient for those who worry about risks to children from playing violent video games. Justice Breyer credits as compelling not only California’s interest in assisting parents but also its independent interest in the well-being of young people — well es­ tablished by the Court elsewhere.33 Stand back from the pigeon-holes of legal doctrine and consider the state’s legitimate role in protecting minors, Justice Breyer suggests. No less relevant to First Amendment interpretation than to death penalty adjudication is the state’s own au­ thority to protect youth who can be “more vulnerable or susceptible to negative influences and outside pressures” than adults.34

Realities of the lives of adults and young people inform Justice Breyer’s attention to whether California could craft a less restrictive yet at least as effective law. Prior to California’s decision to restrict sales of violent video games to those under 18, the Federal Trade Commission found that 70% of unaccompanied minors were able to buy such games despite the industry’s voluntary labeling.35 Even as the voluntary labeling program has improved, 20% of those under 17

the video game m arket has shifted older as the first generation of gamers continues to play into adulthood. Already 62 percent of the console market and 66 percent of the PC market is age 18 or older. The game industry caters to adult tastes. Meanwhile, a sizable number of parents ig­ nore game ratings because they assume th at games are for kids. One quarter of children ages 11 to 16 identify an M-Rated (Mature Content) game as among their favorites. Clearly, more should be done to restrict advertising and marketing th at targets young consumers with mature content, and to educate parents about the media choices they are facing. B ut parents need to share some of the responsibility for making decisions about what is appropriate for their children. The news on this front is not all bad. The Federal Trade Commission has found that 83 percent of game purchases for underage consumers are made by parents or by parents and children together.”).

31 See Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

32 Jenkins, supra note 30; E ssential Facts A bout the C om puter an d Video Game In d u stry: 2011 Sales, Demographics an d Usage D ata, ENT. S O F T W A R E A s s ’N 5 (2011), http://www .theesa.com/facts/pdfs/ESA_EF_20n.pdf [http://perma.cc/P4SU-6BVW] (stating that 91% of the time parents are present when video games are purchased or rented). Absent laws like Califor­ n ia’s, though, it is far from clear that this level of parental involvement will persist.

33 Brown, 131 S. Ct. at 2767 (Breyer, J., dissenting). 34 Id. (quoting Roper v. Simmons, 543 U.S. 551, 569 (2005)) (internal quotation mark omitted). 35 Id. a t 2 7 7 0 ( c itin g F e d . T R A D E C O M M ’N , M A R K E T IN G V IO L E N T E N T E R T A IN M E N T T O

C h i l d r e n 28 (2009)).

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still can buy video games rated for adults, and this number reaches nearly 50% in the case of one large national chain.36 Reality explodes the alternative of computer code filters intended to restrict access to violent video games because “it takes only a quick search of the Inter­ net to find guides explaining how to circumvent any such technological controls.”37 Justice Breyer shows Internet savvy as his dissent contin­ ues: “YouTube viewers, for example, have watched one of those guides (called ‘How to bypass parental controls on the Xbox 360’) more than 47,000 times.”38 If there are any people around who have easier access to this opinion than to an Internet search engine, Justice Breyer’s cita­ tion itself will increase the number of YouTube viewings. These view­ ers would undoubtedly just be parents trying to catch up to their chil­ dren’s digital expertise.

Commercial interests may celebrate the rejection of age-based re­ strictions on the purchase and rental of violent video games, but the freedom to sell to children the games labeled for adults puts at risk pa­ rental influence, young people’s healthy moral development, and common sense.

W h a t I s t h e B i g P i c t u r e ?

Justice Breyer looks up from the case to observe the strange world the Court has made, and asks:

[W]hat sense does it make to forbid selling to a 13-year-old boy a maga­ zine with an image of a nude woman, while protecting a sale to that 13- year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the wom ­ an — bound, gagged, tortured, and killed — is also topless?39 At oral argument, Justice Breyer asked whether such different

treatment of the same 13-year-old makes common sense.40 In his opin­ ion, he emphasizes that this anomalous treatm ent stems not from the First Amendment but from the C ourt’s interpretation; the anomaly “disappears once one recognizes that extreme violence, where interac­ tive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity.”41

Anchored in the realities of families’ lives and young people’s expe­ riences, attentive to expert assessments of social science evidence, and

36 Id. 37 Id. 38 Id. 39 Id. at 2771. 40 "IVanscript of Oral Argument, supra note 12, at 31-32. 41 Brown, 131 S. Ct. at 2771 (Breyer, J., dissenting).

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mindful of the entire Constitution beyond a single doctrine, Justice Breyer concludes by connecting the issues at hand to what makes de­ mocracy itself effective. Democracy requires participation by people who know how to make choices; children sometimes learn by making choices for themselves but on other occasions learn through the choices made by parents, teachers, and democratically elected government. 42 Justice Breyer calls for respecting legislative choices to help parents choose whether their children should have violent interactive video games. If minors can obtain with no adult guidance violent video games identified by their distributors as inappropriate for minors, they may be shaped before the adults in their lives have a chance to •weigh in. If the social science evidence of harm from playing such games is valid, democratic processes in the future may choose more aggression, more toleration of violence, and reduced sensitivity to hu­ man suffering.

Justice Breyer has powerfully championed sensible risk regulation in the contexts of the environment, natural resources, and consumer protection.43 He has also effectively updated the old idea of ordered liberty as active liberty, enabling citizens to share with officials and experts the tasks and opportunities of governance. 4 4 In his dissent in Brown v. Entertainment Merchants Ass’n, Justice Breyer warns against elevating an abstract idea of liberty only to jeopardize the lib­ erties to parent, to grow up without being drilled in violence, and to engage in self-governance with its requisite respect for others. Moder­ ate regulations can preserve enough of w hat we have until we know enough about w hat we can lose. Using common sense, close analysis, and big picture thinking, Justice Breyer models the respect for others that his reasoning summons.

42 Id. 43 St e p h e n Br e y e r , Br e a k in g t h e Vic io u s Ci r c l e : T ow a rd E f f e c t i v e Ris k

R e g u l a t io n (1993). 44 St e p h e n Br e y e r , Ac t iv e Li b e r t y : In t e r p r e t i n g Ou r D e m o c r a t ic

Co n s t i t u t io n (2006).

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