From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Media on Children by Looking to the Example of Violent Video Game Regulations

Abstract

Through the careful examination of a case recently granted certiorari by the U.S. Supreme Court, Schwarzenegger v. Entertainment Merchants Association, this article offers a new perspective on the issue of regulating children’s access to mass media. The case will be argued during the 2010 Term.

The dominant influence of mass media on children is recognized by experts across many disciplines including child development, communication theory, psychology, sociology and the medical profession. Numerous studies demonstrate potential harm to children from exposure to mass media and marketing sources. The prevalence of childhood obesity and increased violent behavior in adolescents are among the suggested negative effects. Nevertheless, courts have been reluctant to recognize such consequences, primarily on the basis of the First Amendment and free speech concerns. Indeed, in a significant line of cases the courts have invalidated every legislative effort to regulate children’s access to violent video games. This legal reluctance presents a major barrier to the real world application of and benefit from research conclusions regarding the impact of media violence and consumer culture on children. While research of this nature has supported attempts at industry self-regulation or voluntary compliance with ethical guidelines, such efforts have achieved little success.

The disconnect between law and social science has led scholars like Professor Barbara Bennett Woodhouse to propose a reframing of the issues. She calls for a paradigm shift from family law’s traditional approach of the parent-child-state triangle to recognize the influence of what she terms “mass-media marketing.” She proposes a new “a child-centered approach to environmental ethics,” or, in her words “ecogenerism,” and suggests that those who advocate for protection of children from the harms of mass media and marketing have much to learn from the environmental law and ethics movement.

Woodhouse’s proposal offers an appealing perspective for those who support regulation of children’s access to harmful media. The real issue, however, is whether ecogenerism will evolve from academic theory to actual practice. This article tests her theory by revisiting the line of violent video game cases to evaluate whether her ecogenerist perspective can achieve any real change in the courts’ conclusions. Particular attention is devoted to challenges presented by First Amendment free speech protections, with a primary focus the Ninth Circuit’s in Schwarzenegger to invalidate a California statute prohibiting the sale or rental of violent video games to minors, a case that the Supreme Court will soon decide. While some speculate that the Supreme Court is unlikely to reverse the Ninth Circuit’s decision given the uniform position of other courts on this issue, this article reveals that an ecogenerist perspective demands a reversal by the Court precisely for that reason. Should the Court affirm the Ninth Circuit’s invalidation of the statute, the article concludes by proposing recommendations for future research and regulatory efforts from an ecogenerist perspective.

Keywords: Schwarzenegger v. Video Software Dealers Association, Schwarzenegger v. Entertainment Merchants Association, First Amendment, Constitutional Law, Children, Juveniles, Mass Media, Video Game Violence, Social Science