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CON: State ban on violent video games would violate First Amendment

I came home from school and jumped into the saddle of my American Standardbred. I galloped through the plains of the Midwest and dueled my way to fame. I shot criminals, hogtied bandits and saved a revolutionary's wife. My good deeds saved the life of innocent people, but these actions may soon be banned, as I did this while playing "Red Dead Redemption," an alleged "overly violent video game."

In 2004, California passed a law banning the sale of violent video games to anyone under age 18. The law forces games to display a rating label, in addition to the already-existing Entertainment Software Rating Board label, and imposes a maximum fine of $1,000 for each infraction. The law was signed and passed by Gov. Arnold Schwarzenegger in 2005 but was not put into action because it was challenged by the Entertainment Merchants Association (EMA) as a violation of the First Amendment.

The issue raised with this case is: Does a state law restricting the sale of violent video games to minors violate the First Amendment right to free speech? To find the answer, we look to the recent U.S. Supreme Court case, United States v. Stevens, a case dealing with depictions of animal cruelty. There, the court declared that a federal law criminalizing the commercial production, sale or possession of depictions of animal cruelty was an unconstitutional abridgment of freedom of speech. This precedent is the closest related case to Schwarzenegger v. EMA and should serve as the blueprint for the court's pending decision. The court, which has heard oral arguments on the matter, should rule that the law is and always will be unconstitutional, no matter how it is written.

Under the law, a "violent video game" is one "in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being." This definition seems to offer compelling support for the law; however, as Justice Antonin Scalia states: "Violence is not and has never been a subject of taboo for children."

Indeed, there are cartoons, such as "Tom and Jerry," that depict the same violence, but we allow children much younger than 18 to watch these shows. Such tolerance of violent cartoons by our society shows there is a lack of constitutional support in preventing these images to be shown to children. There is no reason to isolate video games and say they are not allowed to depict violence and to allow other forms, such as literature, art, movies, comic books, TV and theater, to freely show violence.

California tried to argue that, under Ginsberg v. New York, offensive depictions of violence are not protected under the First Amendment when it pertains to minors. However, Ginsberg only held that sexual obscenity restrictions may vary between minors and adults. Ginsberg does not encompass other categories of expression that should be restricted to minors and holds no true relevancy to Schwarzenegger v. EMA.

Depictions of violence have been a part of society from early Greek mythologies to era-defining films as the "Star Wars" and "Harry Potter" series. If California and other states were to ratify a law preventing video games to depict violence, then California may be forced to start regulating such films as the "Pirates of the Caribbean" series and such books as the "Lord of the Rings" series. These generation-defining films and novels have been idolized and praised by our society, even though there is a plethora of violence in each. By enacting this law, the state might have to ban such wonderful pieces of art and we, as a society, would ultimately suffer.

The court should strike down this law and allow the distribution of video games to proceed under the current system. In United States v. Playboy Entertainment Group, the court stated, "The citizen is entitled to seek out or reject certain ideas or influences without government interference or control," a view that squarely applies to this case. Violent video games should not be banned; children and adults alike should be allowed to roam the Wild West on horseback and engage in gun duels and sword fights if we please.


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