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Violent Video Games or Freedom of Speech?

Updated: Nov 9, 2021

Killing, maiming, decapitating, dismembering. Would you want your children to partake in these activities? What if they could do so in a virtual world where no one is harmed… or at least theoretically? In today’s digital age, violent video games are one of the most popular pastimes for adolescents. Over 90% of American children and teens play some kind of video games, and over 85% of these games contain some form of violence. These numbers are raising concerns that children who play violent games are being negatively influenced, altering their real-life behavior and increasing rates of violence.

In 2005, in order to resist the rising levels of violent media usage by young children, the state of California passed Bill 1179 prohibiting the sale of violent video games to minors and requiring their packaging to be labeled for ages 18 or older. Video game retailers challenged this law in a case that made its way to the U.S. Supreme Court. The case of Brown vs. Entertainment Merchants Association (2010) presented two important psycho-legal questions on the issues surrounding violent media: 1) Does exposure to violence in video games cause aggression and violent behavior in youths? 2) If so, can violent video games still find protection under the First Amendment?

The U.S. Constitution’s First Amendment protects citizens’ speech from government censorship. However, there are some exceptions are permissible that fall the doctrine of strict scrutiny, where the legislature needs a compelling, narrowly drawn reason to pass the law. In this case, the state of California argued that restricting the sale of violent video games would protect children from increased violence. California’s defense heavily rested on psychological research claiming violent media causes adolescent aggression. Numerous scientists, psychologists and medical experts submitted an amicus brief, detailing countless studies and meta-analyses that signaled the negative impacts of violence on young children. It was a fascinating display of psycho-legal expertise. However, the findings were not enough to convince the Court to restrict violent speech. In Justice Scalia’s majority opinion, the Court ruled Bill 1179 as unconstitutional. Not only was this holding a major development for free speech, but had major implications in the field of empirical psychology.

The overwhelming majority of studies have demonstrated a link between aggression and media violence. In Justice Breyer’s dissenting opinion, he reviewed the studies, including a meta-analysis concluding that media violence causes aggression. In his dissent, Breyer states:

“I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.”

However, the majority ruled out the scientific evidence. The majority’s opinion relies on the distinction between correlation and causation. Namely, just because researchers found an association between violent video game use and aggressive behavior, did not mean the games caused aggressive behavior. For example, one could ask, did the violence inspire aggression or were aggressive individuals drawn to violence? Moreover, the case exposed the shortcomings all researchers are faced with when conducting a study: validity. External validity, or the degree to which a study’s findings are (or are not) transferable to the “real world,” played an important part in Scalia’s opinion that ruled against the restriction.

Brown vs. EMA presents a unique intersection between law and psychology. While the majority opinion discredited many psychological findings, it also deals with important questions that researchers are constantly faced with. The truth is, no study is perfect and sometimes results have shortfalls. In the case of violent video games and aggression, the link is overwhelmingly supported in psychological research. However, the majority used the limitations of these studies as a reason to ignore them. As social scientists, we need to be aware of the concern that legal scholars have with our research. We therefore should aim to conduct studies that are internally, externally, and ecologically valid. We need to recognize that flaws in validity can result in the legal system ignoring our findings. We also need to become better communicators of our research in order to be persuasive to judges who, as Justice Breyer notes, are not social science experts. Psychological research can make impacts to the legal system, but only if we conduct and communicate research in ways that are persuasive to legal decision makers.

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