Brown v. Entertainment Merchants Association

I have to say that I am still a little stunned at harsh commentary regarding the decision made by the Supreme Court this week in the Brown v. Entertainment Merchants Association case. 

Facts in a nutshell: (2006) California passed a law that attempted to regulate the sale of violent video games to minors. Gaming industry sued under the 1^st and 14^th Amendments. Ninth Circuit found in favor of gaming industry. Schwarzenegger filed a writ of certiorari. Bing, bang BOOM, the Supreme Court surprises everyone by hearing the case.

Outcome: Supremes upheld the opinion of the Ninth Circuit, citing violations of the 1^st and 14^th Amendments, under the rationale that:

A.    Violent video games are not obscene

B.    California could not show a compelling interest in regulating the sale of “violent” games to minors. (1. The bill was too broad in language and 2. Parents should maintain all that decision-making power)

C.    The Miller test, or LAPS Test, do not apply

A: Obscene.

I don’t need to define “obscene” here. The first quote that comes to mind is the very famous quote by former Justice Stewart (Warren Court), “I’ll know it when I see it,” which was used in reference to the threshold for pornography. The Supreme Court has heard case after case related to the sale of materials that are  perceived to be obscene and has, for the most part, stayed true to what they believed the Framers intended when the 1^st and 14^th A’s were written. Our freedom of speech and due process under the law are principles that can not be easily cast aside just because some members of society are offended. Or, moreover, because state governments want to “help” parents make appropriate decisions for their children.

BUT, Liz, you say:

“If we apply the Stewart Standard, video games that depict rape, robbery, and murder are obscene! Anyone who says differently is lying to themselves and to their audience in the interest of seeming enlightened…or whatever.”

 I, too, find it interesting that Court is contending that our evolving standards of decency do not apply here. Note: the bill was not forbidding the sale of violent games. It was just regulating it.

However, and more important than our opinions and shifting slopes of “evolving standards”:

Obscenity Standards have applied to sexually explicit materials in the past and the Roberts Court contended that they did not apply to violence or games. Fair point. Court precedent wins.

B: Compelling Interest

Thanks, California! First, you want to punt the Pledge of Allegiance from our schools because of “God,” your “feelings,” something, something, youcantmakeagoodargumentforit. HOWEVER, you are totally in favor of LEGISLATION, rather than YOU, which regulates what your minor children can or can not purchase? Make up your minds!

Anyway, that was a little off topic. California could not show a compelling interest because there is no hard science to back up claims that violent media produces violent minors. Look to Columbine and any other national tragedy all you want, folks. The science isn’t there! Those violent incidences resulted in knee-jerk legislation by law makers who were desperate to appease scared, heartbroken, and/or weak-minded voters. However, the bottom line is that either you want the State to tell you what is good for you, or you don’t. You can’t play both sides of that fence where there is no apparent, tangible compelling interest.

C: Miller and LAPS

The LAPS test came from the Miller case (which ruled on the distribution of obscene materials) and consisted of the following thresholds:

• Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious Literary, Artistic, Political or Scientific value.

What I found most interesting about this was that, in his dissent, Breyer wrote, “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

Touché, Sir. Except... 

That’s just not enough to mow over the 1^st and 14^th. (Also, as I mentioned earlier, the principles of Miller and Ginsberg were directly related to the sale of pornographic materials.)

(Side note: If you read Ginsberg v. New York, you will be stunned that the opinion of the Warren court in that case wasn’t used for this one as well. Trust me, I agree with you, and so did Breyer in his dissent. The only thing I can figure is that the Roberts Court really believed that video games and pornography are different).

The gaming industry used ingenious Amicus briefs to make comparisons between presumably violent cartoons of the past (Mighty Mouse and Road Runner) and the level of violence in the public. The bottom line was that these violent games were not found to have a negative affect on the Youth of America. Sure, there is a difference between Mighty Mouse and Grand Theft Auto. HOWEVER, the State of California failed to illustrate it effectively.

Justice Scalia wrote the opinion of the Court and noted:

 "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection."

Scalia later wrote that “the principles of free speech can not be varied.” Whether or not we can all agree on the idea that violent video games are foul, disgusting, counter-productive to our goals as parents/teachers, we must remain focused on the principles upon which our great nation was founded. Our 1^st and 14^th rights are of paramount importance to our advancement as the world’s greatest nation. So, sorry if everyone disagrees with Brown. But seriously, California really botched this one in a big way…not the Supreme Court.

The Slumbering Society (Dare to Achieve II)

I often wonder what gets people moving. When I meet someone, one of the first curiosities I have is about what gets his/her heart thumping and why. The people who fascinate me the most are the ones who could clearly answer those questions in an instant. Those people are few and far between, unfortunately.  I don’t believe this is because others have never had purpose or reason. I think it is because, over time, these dreams and visions were “reasoned” right out of our minds.

It’s a strange shift in principles that seems to take place sometime during our twenties; a drastic shift in our Ideals Paradigm. American children are “encouraged” (I say they are forced) to over-extend themselves from the time they are in diapers until they finally escape the tentacles of their “over-achieving” parents and attend college somewhere far, far away. It is there that they blossom, strategize their visions, and begin the work of moving forward towards their destinies. Somewhere along the lines, however, the same parents who signed them up for little league at the age of nine months begin to sway them from their lofty aspirations. The clear messages are: that’s not realistic; that doesn’t make enough money; you can’t do all that. Their visions are clouded with doubt, which sets the stage for reconsideration, which slows the neck-breaking pace of success and achievement, and then BOOM...there is some cognitive restructuring and, not so suddenly, those lofty dreams become “realistic” dreams and they begin to live the Great American Dream. Hummmmmmmmmdrummmmmmm monoooottttoooony.

This, of course, isn’t true for everyone and I’m generalizing, obviously. There is certainly a select, fortunate group of people who truly can not wait for the sun to rise. They are prepared for battle at every moment and they intend to secure their dreams no matter what occurs. They have encountered the pitfalls; fielded the discouraging words; and worked through periods of preparation (or, what Dr. Seuss called, “the waiting place”). These are the brilliant people. These are the excited people. These are the ones who make YOU want to get out of bed in the morning and look for the next big adventure. I wish these people existed in abundance. These are the people who should be your mentors.

I’ll use this platform to encourage people to remember the beginning when they had dreams and great aspirations. Remember the excitement of planning and strategizing the next big thing. Remember the adrenaline rush that came with the fear of failing…and use it to force you to push harder. It’s not too late to be That Person.

If you can’t do it all now, that’s ok. Do a piece of it. You wouldn’t believe how healing that can be for the slumbering, weary soul. One piece of your dreams will give you the strength to go after more…and more…and then even more.

WAKE UP! Your life is worthwhile! YOU are worthwhile.

Consider the storms and changes you have weathered in your life. As I see it, beginning the beautiful work of achieving your dreams is a task you are ready to accomplish.

Dr. Seuss had it right:

“You have brains in your head and you have feet in your shoes. You can steer yourself any direction you choose!”