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Law professor Kevin Saunders, author of a book called Violence
as Obscenity, has written a short fact
sheet explaining why depictions of violence and obscenity should be treated similarly
under the First Amendment indecency standard.
"Regulating Youth Access to Violent Video Games: Three Responses
to First Amendment Concerns" appears in the January 2003 Michigan State
University - Detroit College of Law Review.
is a form of obscenity and, like sexual obscenity, should not be marketed to children,
according to an Amicus brief filed by
The Lion & Lamb Project. The case, now before the Eighth Circuit Court of
Appeals, involves an ordinance passed by St. Louis County that makes it a crime to sell or
rent video games which are known to be harmful to minors under 17 unless those
children are accompanied by a parent or guardian. The brief quotes U.S. District
Judge David Hamilton, who ruled on a similar ordinance passed by the city of
Indianapolis: It would be an odd conception of the First Amendment
would allow a state to prevent a boy from purchasing a magazine containing topless women
in provocative poses
but give the same boy a constitutional right to train to
become a sniper at the local arcade without his parents permission.
Does the First Amendment give video game manufacturers the right to
sell adult-rated, violent video games to children? A Boston Globe article examines
arguments in a U.S. Court of Appeals case brought by the industry against a St. Louis
County ordinance that restricts minors' access to violent video games. Lion &
Lamb's position is quoted in the article.
A recent U.S.
District Court decision upheld an ordinance in St. Louis County, MO that requires
parental consent before minors can purchase or rent adult-rated video games. After
an interesting discussion of the First Amendment implications, the judge cut through the
hypocrisy of the video game industry when he ruled that: Non-violent video games can
be purchased and played by everyone. According to plaintiffs, that is the majority
of video games. Violent video games can be purchased and played by all those over
seventeen, which according to plaintiffs are the majority of the purchasers. Violent
video games can also be purchased and played by those under the age of seventeen if the
parents have given their consent. So in practice, the video game industry is only
restricted in conveying their violent message to those under seventeen years
of age whose parents do not want their children viewing and/or playing that particular
type of game. (You will need Adobe Acrobat Reader,
which can be downloaded for free, to view this decision.)
The First Amendment was written in order to encourage debate -- not
shut it down. Today, industry spokesmen and others often cite the First Amendment as a way
to close off discussion about the marketing of violent "entertainment" to
children. Some scholars question whether commercial speech has the same protection as
political speech. Others argue that children have special protections under the
First Amendment -- for example, cigarettes and alcohol cannot be marketed to children. An
of the issue appears on a new website.