A Supreme Double Standard: If Violent Video Games Are Free Speech, Why Aren't Sexual Images?

The Supreme Court on Monday struck down a California ban on selling or renting violent video games to minors. The ruling was an important win for free speech, as the court said that violent video games, not matter how objectionable, are works of art in their own right. But the ruling also raised an intriguing question: Why does the court treat violent images and sexual images so differently?

The court's 7-2 decision in Brown v. Entertainment Merchants Association was a firm rejection of the idea that there could be an exception to the First Amendment for extremely violent pictures and graphics. Justice Antonin Scalia, writing for the majority, said it does not matter how "disgusting" video games are because they are still protected speech.
(See "Violent Video Games: The Top 8 Big-Money Franchises.")

The images are, in fact, often wildly violent and gory. In the game Postal II, players (you guessed it) "go postal" by, among other things, attacking schoolgirls with shovels and decapitating them.

What's more, experts predict that the violence could soon become even more extreme. We are probably not far off from mass-marketed violent video games in 3-D and games that allow players to get sensory feedback from their simulated violent actions. Justice Samuel Alito noted in a concurring opinion that the day may come when "virtual reality shoot-'em-ups will allow children to actually feel the splatting blood from the blown-off head of a victim."

Critics of violent video games cite scientific research suggesting that children who play them may become more aggressive in real life. But the majority on the court insisted that even if video games are harmful — and the research is far from conclusive — that fact would not justify the law. "Perhaps they do present a problem," Scalia said, but there are "all sorts of 'problems' ... that cannot be addressed by government restrictions on free expression." The industry self-polices with a ratings system, like the movie industry's, but it is voluntary.

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