On November 2, 2010, the US Supreme Court heard oral arguments for Schwarzenegger v Entertainment Merchants Association1
(oral arguments available at http://www.oyez.org
), a case involving whether states can place statutory restrictions and labeling requirements on the sale or rental of “violent video games” to minors without violating constitutional principles of free speech guaranteed by the First and Fourteenth Amendments.1,2
Laws that restrict minors' access to sexual materials otherwise legal for adults (the “sliding scale” notion of restriction on free speech, with more restrictions for minors but fewer for adults) are constitutional because such material is deemed a less valued or protected form of speech. Proponents of violent video game restrictions argue that the sliding scale standard applied to minors' access to sexual materials should apply to violent video games as well. However, “violent material” has always been seen as protected speech because of its potential political and societal impact (eg, photos and combat footage from the Vietnam War that changed public perception of the war).3
One of the crucial questions the Supreme Court justices will address in Schwarzenegger v Entertainment Merchants Association
is whether violent speech can be restricted under certain circumstances and, if so, whether a causal link is needed between the violent media and harm to satisfy First Amendment principles.3
This determination will require the justices to focus on whether the evidence available in the scientific literature is sufficient to support such a link.
Scientifically, 2 competing social theories have been formulated about the potential effects of video game violence. The first is that video games increase violence because they teach players how to be violent and reinforce violent tendencies. The second theory is that video games have a neutral or possibly beneficial effect because they provide a socially acceptable, physically nondestructive outlet for the release of aggression and thereby promote better mental health.
Legally, the ruling in Schwarzenegger v Entertainment Merchants Association
may have implications for how scientific evidence is viewed and weighed by the Court, especially when it comes to the question of restricting constitutional rights. For example, what deference should a court give legislative findings or what level of persuasion or proof would be required before scientific evidence is seen as conclusive enough to limit constitutionally protected liberties? Is it sufficient for such evidence to be clear and convincing or does a higher standard apply, such as beyond a reasonable doubt, for courts to determine that a government restriction on First Amendment protected speech satisfies strict scrutiny analysis (the standard of review applied to government restrictions on protected speech)? Past cases such as Daubert, Joiner
, and Kumho Tire
primarily focused on how to keep junk science out of the court room and who is qualified to provide an expert opinion.4-6 Daubert
provided judges with principles to guide them in performing a “gatekeeping function,” including the following: (1) Can or has the theory or technique in question been tested? (2) Has it been subjected to peer review and publication? (3) Is there a known or potential error rate? (4) Is there a maintenance of standards regarding its operation? and (5) Has it gained widespread acceptance within a relevant
The Daubert trilogy
, as the 3 previous cases are known, was never intended to instruct legislators about how to determine which side of a scientific debate should be endorsed to justify First Amendment restrictions. In turn, the Daubert
trilogy does not provide guidance to judges in determining how much deference to give legislative findings grounded on unsettled science. The Schwarzenegger
decision may allow the Court to elucidate principles guiding judges on how much deference to give to scientific evidence and theories, especially when a conflict exists in the scientific community.
This article will review the 1950s comic book debate to highlight common elements in debates pertaining to media, children, and harm; the current state of the conflicted scientific literature concerning video game violence and the potential bias in that literature; and the opinions thus far of lower courts on the debate.