Ken Paulson: How obscene is video-game violence?

  My generation blew up blobs.

  Sure, the multicolored objects on the screen of my Atari 2600 video game system were supposed to represent alien invaders or menacing spaceships, but they were pretty much indistinguishable blobs with an occasional appendage or two. In the heat of battle, pixels would scatter, but nobody got hurt.

  Contrast that 1980 technology with the imagery of the highly sophisticated video games that are now the subject of a pivotal Supreme Court case (Schwarzenegger v. Entertainment Merchants Association). The justices are grappling with whether to uphold a California law that bans sales or rentals to minors of highly violent video games such as Postal 2, which graphically depicts beheadings, amputations and young girls pleading for mercy.

  It's not pretty stuff.

  It's also not the kind of content that most of us would want our children exposed to. But in arguments last week, the Court was clearly concerned about whether this limit on video game sales violates the First Amendment.

  How is that possible? Don't we have an interest in keeping digital beheadings out of the hands of minors? As The Paris (Tenn.) Post-Intelligencer editorialized recently, "The U.S. Supreme Court has an opportunity to apply good old horse sense to the question of whether gruesomely violent video games are appropriate for children."

  But there's the hitch. It's not the U.S. Supreme Court's job to decide what's "appropriate" for kids. That's the responsibility of parents. It's the Court's job to decide whether the First Amendment applies to video games.

  Pong and Pac-Man never raised constitutional issues, but that changed as video games became movie-like and more interactive, with dialogue, plots and soundtracks that appeal to more adult players than children. Federal courts have consistently held that modern video games are forms of expression and are protected as free speech.

  If the government wants to control the sale or rental of constitutionally protected video games, it has to meet a very strict standard, establishing that the restrictions are critically important and that there are no other ways to achieve the same societal goal. That's a steep hill and almost certainly would lead to California's law being struck down.

  This month, though, Justice Anthony Kennedy asked this question during oral arguments at the Court: "Why shouldn't violence be treated the same as obscenity?" That would be a constitutional game-changer. Obscenity is not protected by the First Amendment, so government would have a relatively free hand.

  In the case before the Supreme Court, the state of California argues that if explicit sexual content can fall outside First Amendment protections, so should violence, and that violent content can be obscene for kids even if it's acceptable for adults. Some scholars have argued that expanding the obscenity definition to include violence is overdue. "Violence is at least as obscene as sex," wrote law professor Kevin W. Saunders, author of Saving Our Children from the First Amendment.

  But is that true in America? We grow up in a culture in which we move from toy guns and cartoon violence to “Saw” movies. Testimony before the Federal Communications Commission in 1998 estimated that almost 60 percent of America's television programs contained violence. For better or worse, this nation is much more comfortable with violence than it is with sex.

  Expanding the obscenity umbrella would have a dramatic impact on America's popular culture. Highly violent films or television programs without a hint of nudity or sexual content could potentially lose First Amendment protection. And if we decide that some ideas are so horrendous that they can be added to the obscene list, how can we ever put a cap on government intrusion?

  So what's the answer to keeping violent video games out of the hands of kids?

  A new survey by the First Amendment Center finds that 86 percent of those polled said parents should have a "great deal" of responsibility, with 43 percent saying video-game manufacturers and stores should be responsible. Just 28 percent said government should have a great deal of responsibility.

  If we really want to keep violent video games away from kids, here are some commonsense steps that don't involve reinterpreting the Constitution:

    * Stores that sell video games should be vigilant, checking IDs before selling violent games. The industry's ratings system works well when retailers and parents use it.

    * The same voluntary age requirements for retailers should be maintained online.

    * Parents should educate themselves by reading game reviews before they buy.

    * If lawmakers are intent on drafting new legislation, then they need to recognize that banning sales to all minors is overbroad. Seven-year-olds and 17-year-olds are not the same.

  It also doesn't hurt to have some perspective. In the '50s, dime novels and comic books were pilloried as threats to the welfare of young people, with Batman and Robin characterized as unhealthy role models. Musical icons from Elvis to Eminem have been targeted as bad influences on young people. Pop culture always pushes the envelope, and well-meaning people concerned about children push back. Yet over time, industry self-regulation and parental involvement have proved far more effective than censorship.

  In a light moment at the Supreme Court last month, Justice Samuel Alito joked: "I think what Justice (Antonin) Scalia wants to know is what James Madison thought about video games."

  It was a good line and also revealing.

  If James Madison were around today, he might not enjoy Postal 2, but he certainly would tweet about it, cautioning that giving government too much control over what we see, read or write is a dangerous thing — regardless of our good motives.

Comment? E-mail me.

  About the author: Ken Paulson is the CEO of the First Amendment Center.