Déjà Vu: From Comic Books to Video Games: Legislative Reliance on 'Soft Science' to Protect Against Uncertain Societal Harm Linked to Violence v. The First Amendment

38 Pages Posted: 21 Oct 2014

See all articles by Terri Day

Terri Day

Barry University - Dwayne O. Andreas School of Law

Ryan Hall

Barry University - Dwayne O. Andreas School of Law

Date Written: 2010

Abstract

As children play kids’ games, the media, parents, legislators, and mental health professionals decry the unspeakable violence in these games and their effect on the psychological well-being of American youth. The controversy over how much violence is appropriate and whose role it is to decide what is or is not appropriate for children is not new. Ultimately, the Supreme Court decides where the line is drawn between protecting kids or society from uncertain harm and protecting First Amendment rights.

Most federal courts reviewing government restrictions on access to or distribution of violent video games to minors have recognized the First Amendment protections afforded to these video games. Most courts determined that prohibiting the ability of minors to purchase, rent, or access violent video games was not the least restrictive means of achieving the state’s asserted interest in protecting children.

This Article was written in 2010, just after the Supreme Court granted certiorari in Schwarzenegger v. Entertainment Merchants Ass’n, a case involving statutory restrictions and labeling requirements on the sale or rental of violent video games to minors. The article looks at the First Amendment implications of restrictions on violent video games and the tension between social sciences and the law in protecting children from uncertain harm that may be caused by violent video games. It chronicles the history of industry measures taken in response to political pressure to shield young children from the perceived negative effects of violence in various media, addresses the First Amendment obstacles to imposing restrictions on violent video games, reviews the current state of the conflicted scientific literature on the issue of violent video games and their effects on children, and suggests that the Court set high standards for using and reviewing social science research in First Amendment cases. The article ends on a cautionary note, concluding that politics and “soft science” should not dictate York Times First Amendment jurisprudence, even for the laudable goal of protecting children.

Keywords: Video games, violence, First Amendment, soft science, societal harm

JEL Classification: K10, K40

Suggested Citation

Day, Terri and Hall, Ryan, Déjà Vu: From Comic Books to Video Games: Legislative Reliance on 'Soft Science' to Protect Against Uncertain Societal Harm Linked to Violence v. The First Amendment (2010). Oregon Law Review, Vol. 89, 2010, Available at SSRN: https://ssrn.com/abstract=2512379

Terri Day (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

Ryan Hall

Barry University - Dwayne O. Andreas School of Law

6441 East Colonial Drive
Orlando, FL 32807
United States

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