Is violence the legal equivalent of obscenity?

Whether violence is a functional equivalent of obscenity may be decided by the U.S. Supreme Court. Yesterday, the Court agreed to rule on the constitutionality of a California law banning the sale or rental of violent video games to minors, a law predicated in part on the Court’s obscenity jurisprudence.

The California statute defines a violent video game in part as one in which a player can kill, maim, dismember or sexually assault an image of a human being if those acts are depicted in a manner that a reasonable person would find appeals to “a deviant or morbid interest” of minors, is “patently offensive” to prevailing community standards of what is suitable for minors, and causes the game as a whole to lack “serious, artistic, political or scientific value for minors.” The quoted language echoes the Court’s prior definitions of obscenity. Similar language was used in a statute the Supreme Court upheld in 1968 in Ginsberg v. New York, where it said material constitutionally protected for adults could be deemed obscene for minors. Although the Court said it was not ruling on “the totality” of regulating First Amendment values when it comes to minors, California is urging the Court use the case to uphold the video game law.

The law was supposed to go into effect Jan. 1, 2006, but was blocked by a federal court. The Ninth Circuit Court of Appeals ruled last year that it would not extend Ginsberg beyond obscenity cases and found the law unconstitutional. Although six other states have adopted similar laws, all have been blocked by the courts after being challenged.

Interestingly, the decision to review the case comes the week after an 8-1 decision holding unconstitutional a federal law banning so-called “crush videos,” videos featuring the intentional torture and killing of helpless animals. That law created an exception for videos with “serious religious, political,scientific, educational, journalistic, historical, or artistic value.” The Court rejected the government’s argument that, like obscenity, such videos should not be entitled to First Amendment protection, akin to what California is arguing in the video game case. It said it has never held that the “serious value” of expression was a precondition to being protected by the First Amendment.

As a result, the California case appears to be asking whether violence is the equivalent of obscenity for First Amendment purposes, at least insofar as minors are concerned. Personally, I’ve long said we’d be far better off if parents were more concerned about the amount of violence their children see than whether they see others display their “private parts.” That does not, however, translate into believing someone else’s freedom of expression should be restricted because some fail in their parental duties.

Jack Nicholson (attributed)