A Comparison of Legislative and Judicial Responses to Violent Video Games in the U.S. and Germany

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by Robert de los Reyes, Esq.


At least since the advent of fighting games like Mortal Kombat and first person shooter (FPS) games like Doom, both individuals and groups have expressed concern over the effects of video game violence on the mental and emotional development of the children who play them. For such individuals, the Columbine High School shootings confirmed what they already knew. As it spread through the media that the two teen Columbine killers had played FPS games (what other games they played went unreported), mere concern and uneasiness about violent video games hardened for these people into moral certitude. According to them, whatever other events may be contributing to violence in our society, these video games are certainly part of the problem.

It is not the purpose of this article to debate the merits of the proposition that violent video games breed violent children. For these purposes, the important points are that some people believe this proposition to be true, and, among them, those with legislative and judicial power have undertaken to act upon their belief. Two responses, one in the U.S. and one in Germany, to the "threat" of violent video games form the subject of this article. It is worth noting that while the actions in both countries were confined to the (attempted) regulation of arcade games only, there is no particular reason why the logic of these actions would not also apply to console and PC games.

The German Violence Tax


Earlier this year, the town of Goettingen, Germany sought a 700% increase of the tax imposed on the sale of arcade games. What made this proposed tax newsworthy was that the 700% increase would only apply to violent arcade games. The idea was to keep children away from violent video games by discouraging local arcade owners from purchasing and making such games available. More recently, a German constitutional court in the city of Karlsruhe ruled that the Goettingen town council was within its rights. The court noted that violent video games were "a threat to the public good," and that "a higher entertainment tax would help control addiction and reduce the number of warlike games, [which] would do much to stem the increasing brutalization of society." (quotations as reported here)

Germany is not, of course, without protections for the right of free speech and expression. Such a right is enshrined in Article 5 of the German constitution. Article 5, in part, establishes (as translated here):

(1) Everyone has the right to freely express and disseminate his opinion in speech, writing, and pictures and to freely inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films are guaranteed. There will be no censorship. (2) These rights are subject to limitations in the provisions of general statutes, in statutory provisions for the protection of the youth, and in the right to personal honor....
The second part may be surprising to Americans more accustomed to the First Amendment to the U.S. Constitution. Germany, like most European countries, adheres to a social democratic tradition of governance. It is a tradition less innately distrustful of government, and one in which, in the end, individual rights are limited by the desire to preserve social harmony. Subparagraph (2) explicitly establishes one such limitation: free speech must not endanger children or harm the dignity of another person.

The mere existence of such a provision would not make the court's ruling a foregone conclusion. The initial assumption (or conclusion) must be that violent video games in fact harm children in some way. As I lay no claim to expertise in German law or legal processes, I cannot report with any certainty whether every such German court would have drawn the same conclusion about the effect of violent games as did the court in Karlsruhe. As we will see below, however, at least one U.S. court has examined the proposition that violent games harm children in detail and found the proposition wanting.

Violence under the First Amendment to the U.S. Constitution


In 2000, the city of Indianapolis, Indiana also set its sights, as it were, on violent arcade games. The city passed an ordinance which defined "harmful to minors" to mean "an amusement machine that predominantly appeals to minors' morbid interest in violence or minors' prurient interest in sex, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years, lacks serious literary, artistic, political or scientific value as a whole for persons under" that age, and contains either "graphic violence" or "strong sexual content." The ordinance required that video arcade operators place such games in a separate area of the arcade out of sight of the main area of the arcade and that no minors be allowed to enter the separate area to play those games unless accompanied by a parent or guardian.

Video game manufactures and their trade association filed suit seeking an injunction against enforcement of the ordinance in a federal district court. The district court denied the injunction and the manufacturers appealed the U.S. Court of Appeals for the Seventh Circuit. The case (American Amusement Machine Association v. Kendrick, (7th Cir. 2001)) was heard by a three judge panel including the influential Judge Posner, best known for his work in the area of law and economics. To put it in brief, the court overturned the lower court ruling and ordered the district court to issue the injunction requested by the video game manufacturers. The court held that the "harm" wrought by violent video games either to children or to society at large was entirely conjectural and the ordinance, therefore, not likely to survive a constitutional challenge.

Violence and Obscenity Distinguished


In order to reach its conclusion, the court was required to march through the standard paces of First Amendment analysis. First, the court examined whether violent video games constituted speech or expression protected by the First Amendment. As anyone who has seen the movie The People Versus Larry Flint knows, the First Amendment does not protect expression categorized as obscenity. Traditionally, obscenity has specifically been invoked as a category of expression related to sex. The City asked the court to include depictions of violence in the category of obscenity knowing that, if the court did so, the City would enjoy free reign to regulate it in most any way it saw fit. The court declined the invitation to expand the definition of obscenity, noting that there was no basis for concluding categorically that violence constituted obscenity. In other words, at least some expressive images of violence are subject to First Amendment protection.

That said, the court went on to backtrack a bit. The court added that it could imagine a situation in which violence would, in fact, rise (or sink) to the level of obscenity. In particular, the court appeared to link obscenity and realism. The court used the game The House of the Dead, in which the player wields a pump action shotgun to blast evil zombies, as its benchmark of violence. The court noted that the game is filled with violence and gore, "but so stylized and patently fictitious is the cartoon-like depiction that no one would suppose it 'obscene' in the sense in which a photograph of a person being decapitated might be described as 'obscene.'" The court further noted that the government does have a role in protecting people from violence. The Indianapolis ordinance, however, did not seek to prohibit violence, as such, but rather to prohibit violent images that the City argued caused real-world violence.

To the extent, then, that the City's true concern was not about a community standard of obscenity, but about the harm caused by violent video games either to the player or to the public (who stood to be victims of overly aggressive, game-playing youth), the City would have to demonstrate a "compelling and not merely plausible" justification for its regulation of speech. After all, observed the court, "Children have First Amendment rights."

Children's Rights and a Defense of Violence


At this point, the court begins what I consider the remarkable part of the opinion, whether one agrees or disagrees with its conclusions. At a time in the United States when almost any action may be justified by use of the phrase "to protect our children," the court offers detailed examination of (1) why children's freedoms must be preserved and (2) why childhood exposure to violence may be a good thing.

While children do not enjoy the full constitutional freedoms of an adult (e.g. the right to vote), neither are they completely bereft of those rights. The court offers a rationale, which, coincidentally, serves as a rejoinder to the German view of the protection of children from free speech. Having noted that children have First Amendment rights, the court commented as follows:

This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. . . . People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.
In other words, it may be argued that, contrary to now popular opinion, prohibition and protection are not necessarily the same thing.

The court continues by observing that its proposition would likely encounter little resistance if the question before it were whether children ought to be permitted to read the Odyssey, complete with its graphic descriptions of murder, hangings and the gouging out of Polyphemus' eye with a heated, sharpened stick; or the Divine Comedy or War and Peace or any other of the great works of literature which are replete with graphic depictions of violence against humans. The court noted, "Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.... To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

Interactivity and Storylines


Some have argued that video games are different than books because of the interactive quality of video games. The court dispenses with this argument in short order. It noted that, to the contrary, the best literature is the most interactive. By way of example, the court observed that protests from readers prompted Dickens to change Great Expectations to give it a happy ending and that tourists visit sites in Dublin in which fictitious events of Ulysses are imagined to have occurred.

The court went on to comment that most of the games that troubled the City, including the bloodbath The House of the Dead, were no more or less than stories. In that game, for example, the player is sent to rescue innocent people from a mansion taken over by zombies conjured up by voodoo. While this may not be a grand or original story, the First Amendment is designed to take government out of the role of art critic. The court also noted by way of example that some video games may even express an "ideology." Mortal Kombat, for instance, depicts women as fighters fully capable of defending themselves and even defeating male fighters. This depiction, while a far cry from a full academic treatment, expresses at least some mode of feminist ideology.

As a final comment in this area, the court was dismissive of the City's position that children's rights to expression were protected by the fact that they were permitted to access the games in the company of an adult. Looking at the practical realities of getting a parent to accompany a child to play a violent game, the court concluded that "conditioning a minor's First Amendment rights on parental consent of this nature is a curtailment of those rights," and would therefore require some compelling justification.

Psychological Studies


In an attempt to bolster its claim that violent video games pose a threat to children and to society at large, the City introduced into evidence a pair of psychological studies (reported in Craig A. Anderson & Karen E. Dill, Personality Processes and Individual Differences--Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and in Life, 78 J. Personality & Soc. Psych. 772 (2000)). The district court had found these studies persuasive for the proposition that playing violent video games tends to make young persons more aggressive in their attitudes and behavior and that, in general, violence in the media engenders aggressive feelings. The Court of Appeals' own review of the studies introduced by the City found this holding insufficient and drew its own unequivocal conclusion:

The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive, entertainments. It is highly unlikely that they are more harmful, because "passive" entertainment aspires to be interactive too and often succeeds.... It is conceivable that pushing a button or manipulating a toggle stick engenders an even deeper surge of aggressive joy, but of that there is no evidence at all.

The court went on to note that video games constituted an extremely small portion of the violence to which today's youth is exposed and reemphasized the point that the violence in question was depicted in a cartoonish manner, incapable of confusion with the slaying of real people. In the end, even if the City were correct in its assessment of the effect of violent games, that effect could not, at present, rise to the level of a "compelling" justification for infringing the First Amendment right of children.

Conclusion


The different ways that the cities of Goettingen and Indianapolis attempted to regulate violent video games reflect the contours of their respective countries' principles of free speech. To my knowledge, no U.S. governmental agency has attempted to impose a Goettingen-style violence tax on video games of any sort. It is highly likely that any such attempt to do so would flatly fail. Not only would such regulation have to survive the same sort of compelling justification test described above, but it would have to account for the fact that it also infringed on the rights of adults under the First Amendment, since they, too, would suffer from the financial disincentive of arcade owners to stock violent games. This, in a grossly simplified form, is much of the difference between U.S. and European views of individual rights: Europeans may exercise their rights until they interfere with the preservation of societal interests; Americans may seek to preserve societal interests until they interfere with individual freedoms. Obviously, this overstates the case, but nevertheless helps to illustrate where the burden of proof lies with respect to the allocation of group rights versus individual rights.

By way of further conclusion, it is worth noting that the 7th Circuit decision discussed above is not an unequivocal victory for defenders of the First Amendment. In the first instance, the court's decision was limited to a review of the district court's decision to deny a preliminary injunction. For non-lawyer readers, this means that the case was decided on the basis of a standard applied to a specific type of procedural motion employed early in a case; in other words, the court made no final ruling as to the merits of the ordinance (though one would be daft to ignore the signals the court sent). There is nothing, however, to prevent the City from reworking its ordinance in an attempt to achieve its goal while addressing the concerns of the court. In addition, while largely expressed in dicta (the non-binding conclusions or opinions of the court not necessary to reach its final decision), video game manufacturers would do well to take heed of the early warning the court expressed. The court hinged some critical rulings on its view that (1) the violence depicted was cartoonish and easily distinguishable from the real thing, and (2) the game bothered to have some sort of story or ideology, however derivative or trite. This ought to make First Amendment die-hards uncomfortable in spite of an otherwise ringing victory. Game designers should certainly pay attention: good (but not too good) graphics and an engaging story may count for much more than mere aesthetics in making sure your game gets played.

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This page contains a single entry by Editor published on July 4, 2001 7:30 AM.

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