I love empirical confirmation of my views, especially when I wasn’t expecting it. You may recall that I recently wrote an article for On the Square defending the Supreme Court’s decision in Brown v. Entertainment Merchants Association, which struck down on First Amendment grounds a California statute that prohibited the sale of certain violent video games to minors without parental consent. One argument that never occurred to me was that some games affected by the statute might actually be good for minors to play. But, it turns out, this is actually the case.
Writing in the July 18 print edition of National Review (not available online, as far as I can tell), James Lileks describes a game called BioShock
While the dead-eyed child squirms in your hands, piteously begging to be freed, the voice in your head gives you a choice: kill it, or save it. You suspect that there will be consequences either way.
That’s a scenario in the video game BioShock, and you can imagine the outrage: This is entertainment? What sort of culture produces such depravity? Perhaps this will help: The child is possessed by drug-induced insanity, she’s accompanied by a lumbering robot that wants to kill you, you’re in a ruined underwater city populated by people driven made by genetic manipulation, and the entire story is about a society constructed along the principles of Ayn Rand….
BioShock rewards your humanity, plays with your loyalties, picks apart your character’s sanity. It’s a way of telling a story that some hesitate to call Art, because unlike Tolstoy, you can shoot fireballs from your hand. But for kids who grew up controlling digital alter egos, it’s high literature—and was probably illegal for minors in California. Until the courts weighed in….
By the way, if you release the child in BioShock, you get all sorts of rewards. Never met a gamer who didn’t let the kid go.
So there you have it. The California statute was sweeping away the innocent with the guilty. And as Abraham said to the Lord, Far be it from you to do such a thing, to make the innocent die with the guilty, so that the innocent and the guilty would be treated alike.
(Technical note for the lawyers: Yes, I realize that Bioshock may have fallen under the savings clause in the statute as being a game with serious artistic or literary value, but for the problems with that, see Justice Alito’s concurrence.)
July 11th, 2011 | 12:36 pm
One argument that never occurred to me was that some games affected by the statute might actually be good for minors to play. But, it turns out, this is actually the case.
Even the makers of the game wouldn’t go that far. They certainly don’t think the game is suitable for minors.
The Entertainment Software Rating Board rates the game as Mature (17+): “Titles in this category may contain more blood and gore than the Teen rating would accomodate, sexual themes/content/references and vulgar language. This content is strong in impact.”
Many retailers (like Target, GameStop, Wal-Mart, Toys R Us, Amazon.com and Best Buy) have a policy of not selling games with this rating to people under 17 without parental approval.
July 11th, 2011 | 12:45 pm
Two more points:
(1) Why is it that when National Review feels the need to comment on a social issue they turn to libertarians like Lileks? Do they have that much trouble finding social conservatives who will write for them?
(2) While there may be good examples of “sweeping away the innocent with the guilty,” the game Bioshock isn’t it. Has everyone forgotten that just a few years ago the game raised eyebrows for its depictions of violence toward children?
Lilek’s claim that no gamers ever kill the children in the games is simply naive, wishful thinking.
July 11th, 2011 | 1:00 pm
Games like this usually have an incentive to act evil. Because making bad decisions effects the outcome of the story (or what little story there is), a player, after making good decisions during the game, will want to “play through” the game again, this time making evil decisions in order to see how it effects the story.
And that’s just one example. Sometimes players are given different “powers” (e.g. shooting fire out of their hands vs. shooting lightning out of their eyes), based on the choices they make.
Also, these games never really go in depth about why a certain decision is moral or immoral. It just classifies actions as one or the other. Some actions may be in a moral gray area, but nonetheless treated as good actions. So players may actually be receiving a bad education about morality from these games.
While the game may reward your humanity, it also rewards your inhumanity.
July 11th, 2011 | 1:24 pm
No one was proposing to ban BioShock, or any other game, so this is quite irrelevant.
July 11th, 2011 | 2:02 pm
Bioshock…man this is hard to argue. Thing is I’m betting none of you have played it. Here’s a video explaining some of the stuff above Joe mentions.
http://www.youtube.com/watch?v=s26-I9USFLk&feature=related
Little Sisters in Rapture are genetically modified children designed to process ADAM in their bodies. They are guarded by huge protectors called Big Daddies from the near-insane slicers that roam Rapture. This cut scene is your first meeting with one of them.
You essentially have the choice Joe mentions. You can choose to harvest them, like the slicers do: kill them to take their ADAM directly, or you can purge them of their ADAM.
But the way they frame it is powerful. The Little Sister is bereft of her protector, and just the simple step of her scrambling away from you in terror and cornered, bumping into a chest in fear-man that raised the emotional stakes. The guy in the video harvested her-he killed her for her ADAM. When I played I never could, even once.
Heck, just killing the big daddies…”Why wont you get up, Mister bubbles?” the little sisters would wail. Bioshock as a game confronted you a lot about matters of violence. But it also uses it as an “aint it cool?” thing-you can incinerate people, electrocute them, and do a lot of gruesome things.
It is a much more thoughtful game than many, and illustrates nicely the conflict of violence in games.
July 11th, 2011 | 2:53 pm
All right. You’ve convinced me. Children should be able to purchase anything they want. I am with my one-year-old grandson right now. I believe I will mix him a martini, light on the vermouth.
July 11th, 2011 | 3:06 pm
Mark Donovan,
There is no First Amendment right to drink alcohol. Also, nobody said children should be able to purchase anything they want. The Supreme Court did not say parents have no right to control what their children purchase, or stores have no right to refuse to sell adult games to children. It said it’s not the government’s role to decide which video games children may and may not buy. It is strange that so many people who ordinarily don’t want the government to do anything at all suddenly want the government to get into the business of deciding which video games children can buy.
July 11th, 2011 | 3:09 pm
It also needs to be said that this is an M-rated game, and earns it legitimately. So no, minors shouldn’t be playing it. If anything, the pivotal scene of the game involves something that is both a profound commentary on what free will means, and an intensely disturbing act. I can’t go into it due to spoilers though.
However even out of this good can come. There was a reviewer who played it, and said “I’m going to be evil, kill all the little sisters.” He did, and he reached a certain point in the game. There you are recovering in the lab of the lady who is trying to humanize the little sisters again. On his way he walked past them, and one of them said. “I know him. He’s the one who hurts us.” Cue one very sorrowful reviewer.
July 11th, 2011 | 3:56 pm
“It is strange that so many people who ordinarily don’t want the government to do anything at all”
Show me one person who thinks this. Anyone. I don’t even demand “so many”. Just one. One single, solitary person.
If you want to be taken seriously, you need to be serious. You’re not.
July 11th, 2011 | 5:23 pm
Joe Carter’s comment that Bioshock gets an “M” (for mature, 17 and older) rating under the software industry’s own guidelines is quite beside the point. Whatever the importance of such guidelines in this discussion, even if the game is unsuitable for children 17 and younger, the California statute would have prohibited its sale to persons over 17, but less than 18, years of age, without parental consent. So, in any event, my point carries with respect to such persons.
More generally, Dblade takes my meaning perfectly: contrary to what you might think reading the Supreme Court’s opinion, there are some violent video games within the sweep of the California statute (same nod to the savings clause as in my original post) that are, as Dblade puts it, “much more thoughtful.” That’s an important point because many people who don’t know much about video games assume that all such games are utterly mindless nonsense. I assumed as much myself in writing my article last week, and now I see that I was wrong. Some are better than that—maybe not much better, maybe not many of them—but some are, and that should weigh heavily in deciding whether the government should have authority to prohibit or restrict them.
July 11th, 2011 | 5:46 pm
Professor Miller,
You’ve still failed to convince me that the framers ever intended the right to free speech to extend to vendors “speaking” freely to minors without their parents’ consent. It is true that neither Justice Thomas nor Justice Breyer (who both asserted that the state may insist that vendors go through parents when the content of their “speech” is below a certain threshold) failed to cite, as Justice Scalia pointed out, any case law for that proposition. But that argument is, in fact, specious, and I am not a little mystified that Justice Scalia would make it for several reasons.
First, until the incorporation doctrine was applied to the free speech clause some decades after the ratification of the 14th amendment, the states were not prohibited from proscribing speech. Indeed, if memory serves me, there was a proposal at the time that the Bill of Rights were being debated in Congress to propose an amendment to so restrain the states and it was rejected by Congress. Therefore, it is not surprising that no case law would be found on the subject based on state or local laws from the time of the framers and for well more than a century thereafter. Second, until World War I, there is surprisingly little free speech jurisprudence of any kind. That is, there is little case precedent from the time of the founders to which to cite on any free speech issue. Justice Scalia is, I am sure, well aware of both of these circumstances. Third, Justice Thomas did cite other evidence that the founding generation understood that minors did not have the right to receive speech that had not been approved by their parents, which, given the understandable lack of case law, more than adequately establishes his and Justice Breyer’s positions. Fourth, because of the attitude expressed by the founding generation, there was likely little need in a pre-radio, pre-TV, pre-internet, indeed, pre-public library day for laws requiring vendors to seek parental approval before speaking to their children.
I believe that this simple proposition was what this case was all about. Maybe it is for the best in the long run that the Court decided this case as it did, but deep down, I really doubt it.
I fail to see much, if any harm, constitutional or otherwise, and a lot of good, in requiring a vendor to seek a parent’s permission before vending to minors games in which they decapitate human-appearing characters with machetes with a resulting spew of blood, bash in their heads with crowbars with a resulting spew of gray matter, rape women and assassinate a President of the United States who was, in fact, assassinated. I am no libertarian and this case illustrates one reason why.
July 11th, 2011 | 6:15 pm
Robert T. Miller . . . the California statute would have prohibited its sale to persons over 17, but less than 18, years of age, without parental consent. So, in any event, my point carries with respect to such persons.
But 17 year olds are still minors. If Playboy rated their content 17+ would we find it acceptable to sell the publication to minors without parental consent?
I have no doubt that some games are “thoughtful.” But how does that affect parental authority? Shouldn’t parents get a say in whether their children are mature enough (even at the age of 17) to play such games?
July 11th, 2011 | 6:29 pm
Show me one person who thinks this. Anyone. I don’t even demand “so many”. Just one. One single, solitary person.
Brian,
It was hyperbole!
But show me Tea Party members or conservative Republicans who want more government regulation. Check out this, for example:
See Michael Gerson’s comments in the Washington Post:
Then, of course, we have Tea Party members questioning the constitutionality of child-labor laws.
July 11th, 2011 | 7:18 pm
Shouldn’t parents get a say in whether their children are mature enough (even at the age of 17) to play such games?
Of course parents should have a say! They have a perfect right to forbid their 17-year-olds to buy or play such games. However, that does not translate into a right of the state of California to pass a law making it a criminal act to sell a whole class of video games to minors.
July 11th, 2011 | 10:36 pm
I am no longer surprised that in this Time of disorientation, there are some who do not know the definition of obscene:
http://www.merriam-webster.com/dictionary/obscene
July 12th, 2011 | 7:18 am
@ David Nickol: “Then, of course, we have Tea Party members questioning the constitutionality of child-labor laws.”
That’s quite a claim (a sweeping generalization?). Are you talking about Mike Lee from Utah?
http://www.huffingtonpost.com/2011/01/14/mike-lee-child-labor-laws_n_809100.html
Because he wasn’t questioning child labor laws per se but the authority of the federal government to pass such laws under its commerce authority. He thought child labor laws were appropriate for states to pass.
Though, I have to say, this was a bad topic to pick to criticize federal authority to pass laws. Ultimately pretty stupid in my opinion.
July 12th, 2011 | 7:21 am
@ Joe Carter: “I have no doubt that some games are ‘thoughtful.’”
I’ve played a fair number of video games in my day, and I can say, based on my experience, the most thoughtful game out there involves a plumber trying to save a princess from some sort of turtle creature.
July 12th, 2011 | 7:47 am
To Nancy D:
Like many common terms, “obscene” has a technical meaning when used in legal, particularly First Amendment, contexts. See the delightfully named case, Miller v. California, 413 U.S. 15 (1973). It is that technical meaning, not the ordinary lexicographical meaning found in Merriam-Webster, that matters here.
July 12th, 2011 | 10:17 am
David: Yeah, of course it was hyperbole. But unfortunately it’s the sort of hyperbole that passes for serious debate among demagogues these days (how many times has Obama said pretty much just what you said?), so you should try to be a bit more serious here among friends, ‘k?
July 12th, 2011 | 11:22 am
Because he wasn’t questioning child labor laws per se but the authority of the federal government to pass such laws under its commerce authority. He thought child labor laws were appropriate for states to pass.
Tim,
I am no expert on the Tea Party, but I have read a little bit about “tentherism.” As I understand it, those Tea Partiers (and other conservatives who subscribe to it) believe that any power not explicitly discussed in the Constitution belongs, through the Tenth Amendment, to the states. Now, a lot of things the federal government does are not explicitly in the constitution. In fact, the function of the Supreme Court to rule on the constitutionality of laws isn’t even in the constitution. There is a whole body of jurisprudence and precedent that has grown over the last 200 years, and as I understand it, many Tea Partiers would like to see a great many of the developments of the 20th century undone. The very conservative justice on the Supreme Court don’t subscribe to any of this, but there are people like Michelle Bachmann seem to.
July 12th, 2011 | 11:44 am
Tim –
Try “Braid”. Don’t forget to read what’s presented. Explore a little, too.
July 12th, 2011 | 12:17 pm
A parent may certainly have the right to forbid a 17 year old from buying the video game, but I think you would have to look very hard to find a 17 year old who would be stopped by that.
One could also make a case that the games are preparing the young, in a messy sort of way, for the very real decisions they will make as an adult, not between good and evil but between the evil that will benefit them and the evil that will benefit someone else at their expense.
July 12th, 2011 | 12:20 pm
I think it is important to note that as a technical matter, the statute in question was not seeking to restrict access to violent video games because they are obscene (in the legal sense), but because they are “harmful to minors” (again, in the legal sense). It is true that the case on which “harmful to minors” jurisprudence is based, Ginsberg v. N.Y., dealt with soft core porn (pornography that does not rise — or lower — to the level of obscenity), but the basis for restricting minors’ access to this speech was the state’s interesting in assuring the ethical and moral development of youth and in aiding parents in the rearing of their children by placing a legal barrier between vendors of such material and minors, a barrier that required parental consent. That is, it gave justifications that could apply to content other than pornography. The statute in question used the Miller test to form a test for harmful to minor violent video games, not obscene violent video games.
One fear I have is that a future Supreme Court will decide that there really is not a good justification for restricting minors’ access to soft core porn either. Judge Richard Posner intimated at that possibility in an earlier violent video game case. Justice Scalia’s opinion in Brown was based on the notion that sex is a special category, but it reject arguments that the same reasons for making sex a special category applied to video games, leaving us simply with the argument that minors’ access to soft core porn may be restricted because it historically has been. That’s a thin reed and one apt to break. Historical precedent alone does not seem to carry much weight with some justices.
July 12th, 2011 | 12:57 pm
@ David: I’m no expert on the Tea Party either. Nor do I know what “tentherism” is, but it seems similar to the principal of Federalism which isn’t that controversial.
The Tea Party-ers may be overzealous in their strict textualist interpretation of the Constitution, but I think it’s a stretch (to say the least) to accuse them of wanting to undue child labor laws.
@Ray Ingles: I’m going to have to decline. But thanks for the suggestion.
July 12th, 2011 | 2:37 pm
Tim, if you decline to play them, you really can’t comment on them. There’s nothing violent in Braid at all: the theme is that sometimes rushing to save the princess isn’t what it seems.
It’s frustrating, because for all the talk of violent games, the majority of them are as about as violent as a PG-13 movie. Did you ever see Battle: LA? That is a video game disguised as a movie, straight down to scenes that feel like levels, and an end boss fight.
Violence isn’t what you have to worry about though. Your kid getting addicted to an MMO that he can download for free, and uses operant conditioning to get him to spend hundreds if not thousands of dollars and hours in a virtual world. That’s the big problem.
July 12th, 2011 | 7:03 pm
Robert, where exactly in our Constitution does it state that the Courts have the Right to redefine words?
July 12th, 2011 | 7:11 pm
P.S., Wouldn’t you rather live in a country that respects the inherent, unalienable Right of all persons to be treated with Dignity and Respect, then a country that doesn’t even recognize the definition of obscene?
July 13th, 2011 | 6:21 am
Two more points:
Joe misses the point. The point isn’t whether or not Bioshock is an example of a game that is or isn’t good for minors to play. The point is that just like a book, its perfectly possible to have a good game that’s nevertheless violent (in fact, it may have to be violent just as a particular good book may need to have violent scenes in it). Whether or not Bioschock fits that case is a matter to be debated by game reviewers and evaluated by consumers and parents.
The question then is what business does the state have in making the call whether or not a video game is ‘good for’ minors? It doesn’t. How would Joe feel about a law requiring bookstores to get parental permission before selling any book to a minor that wasn’t praised by the New York Review of Books? That the Entertainment Software Rating Board has an opinion on the game is great for parents and consumers, but when you give the Entertainment Software Rating Board’s decision legal standing you have to then ask who the hell elected the ESRB? The NYRB is just one private entity that reviews books. You’re free to embrace or ignore all their opinions. If they had the power to ban books, though, it would be a lot more sinister.
July 13th, 2011 | 6:28 am
Joe
But 17 year olds are still minors. If Playboy rated their content 17+ would we find it acceptable to sell the publication to minors without parental consent?
OK who the hell is Playboy to rate their content? What if they rated it ok for 15 and above should they sell to 16 yr olds whose parents may object?
The CA law was not about parental consent. Parents are free to forbid any and all games in their house *regardless* of what some industry funded ‘rating agency’ rates their content to be. The CA law was about establishing speical hurdles for games based on the speech the gov’t, not the parents, deemed worthy of concern. Just ask yourself what about a video game based on The Golden Compass? If it wasn’t very violent, no parental permission would be required for minors to buy it. But don’t you think theistic parents have a right to object to a work that its author describes as a atheist answer to the Chronicals of Narnia? Why are their valid concerns not reflected in the law? Because the law is about the gov’t regulating the speech it wants to regulate, not about parental rights.
July 13th, 2011 | 8:17 am
Nancy –
Every discipline develops a specialized vocabulary that co-opts common words to describe technical concepts, often with only a fuzzy relation to common usage.
Take computer programming, where the phrase “atomic heap operation” is perfectly straightforward to other programmers but doesn’t mean what non-programmers might picture.
Or take theology, where ‘simple’, ‘grace’, ‘redeem’, ‘separation’, ‘appropriation’, ‘confirmation’, and so forth have specialized technical meanings not present in day-to-day conversation.
July 13th, 2011 | 9:37 am
To Nancy:
It’s not a question of the Supreme Court “redefining” the word “obscenity” as if the Constitution used the word in one sense and then the Court came along and decided to change the meaning to something else. Neither “obscenity” and “obscene” appear in the Constitution. The only relevant passage in that document merely provides that “Congress shall make no law … abridging the freedom of speech.” Taken literally, that would prevent government from suppressing or regulating any speech, including “obscene” speech, however one defines the word.
The word “obscenity” comes into the question because, in its First Amendment cases, the Supreme Court has taken this normal English word and given it a technical meaning. Law, like many other disciplines, does this all the time—a fact I would have assumed was common knowledge. To mention some obvious examples, the words “offer” and “acceptance” have technical meanings in the law of contracts; the word “negligence” has a technical meaning in tort law; and the word “preference” has a special meaning in bankruptcy law. Even words like “homicide” and “murder” are technically defined by statute. American law has literally thousands of technically defined terms. That’s why there are books like Black’s Law Dictionary—so people can look up what a word means, not in common usage, but in the law. Like other intellectual disciplines, the law takes words from everyday language and gives them technical meanings because, for good reasons, it makes fine distinctions and therefore needs special words to mark those distinctions. Many words, “obscenity” and “obscene” among them, thus come to have both a common meaning in English generally and a technical meaning in the law. None of this should surprise anyone.
For very good reasons explained in Miller v. California, the Supreme Court held that “obscenity,” as it technically defined the word, is beyond First Amendment protection, meaning that materials “obscene” in this legal sense are one of the few kinds of speech that government may restrict without having to show that its restrictions serve a compelling government interest by narrowly tailored means. That makes “obscene” speech very different, for legal purposes, from most other kinds of speech.
Now, what kind of speech did the Supreme Court define as “obscene” in this special, technical sense? According to Miller v. California, a work is obscene if, taken as a whole, it (a) appeals to the prurient interest in sex, (b) portrays, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) taken as a whole, lacks serious literary, artistic, political, or scientific value.
The key point is that, for the reasons stated in that case, the Court held that exactly the class of speech picked out by this technical definition is beyond First Amendment protection. Now, violent video games portray violence, though not necessarily sexual acts, and so while they may well be obscene in the general sense, they are not necessarily so in the legal sense. The question then becomes whether the reasons that justify placing legally “obscene” speech beyond First Amendment protection apply as well to speech “obscene” in the merely general sense. The question thus concerns not the meanings of words but whether the justifications for banning one class of speech (the legally “obscene”) apply as well to another class of speech (the “obscene” as understood in general usage). This is a normative question, whether one thinks of it as a question of constitutional law or political morality. It is certainly not the kind of question that can be settled by appeals to the dictionary.
As to the question in your postscript, I think it presents a false alternative. I believe I am blessed to live in a country that, with some glaring but limited exceptions, tries hard to respect the dignity of all human beings and in addition upholds reasonable regulations on obscenity, whether in the technical or the common sense of that term.
July 13th, 2011 | 6:31 pm
But, Professor Miller, you (and Justice Scalia) conflate obscenity with “harmful-to-minor” speech. Obscenity is not protected speech under the free speech clause of the First Amendment. “Harmful-to-minors” speech is protected speech as to adults but not as to minors. That is, obscenity (in the legal sense) and “harmful to minors” (in the legal sense) are not the same thing. Obscenity, in the legal sense, only applies to sexual content. It was arguable, before Brown, that “harmful-to-minors” could (and should) apply to violent content as well as sexual content. By conflating “obscenity” and “harmful-to-minors” speech, Justice Scalia avoided addressing the justifications given in past cases for restricting minors’ access to speech deemed harmful to them, justifications that apply as well to graphically violent video games as to “girlie magazines”.
The issue in Brown was not whether violent video games are “obscene”, but whether they can be “harmful to minors”. Justice Scalia has now written an opinion which in effect declares that in a legal sense only sexual content may be “harmful-to-minors”. The problem is that in a real world sense, many of us don’t buy it. We believe that being a virtual murderer by decapitation or assassination or being a virtual rapist is as harmful, indeed, more harmful to the ethical and moral development of youth than gawking at naked women in Playboy. Unfortunately, Justice Scalia and the four justices who joined with him have slammed the door on any state action to aid parents in protecting their children from such harm.
July 13th, 2011 | 8:43 pm
Mr. Laughlin:
In no way do I conflate obscenity and speech “harmful to minors,” whatever exactly that means means. Obscenity is beyond First Amendment protection, which means the state may ban it without regard to whether it is “harmful to minors” (or, more accurately, whether banning it would serve a compelling government interest by narrowly tailored means). Thus, while viewing obscene materials may well be harmful to minors, that is quite irrelevant for purposes of First Amendment analysis. Because obscenity is beyond First Amendment protection, a state banning obscenity is *not* required to show anything at all about the ill effects of obscenity, whether on minors or anyone else.
Which brings me to my second point, i.e. that speech “harmful to minors” is not a recognized category in First Amendment law. If a category of speech not beyond First Amendment protection is “harmful to minors” in some sense, that *might* be the beginning of an argument that suppressing the speech serves a compelling government interest. But, then again, depending on the level of harm, it might not. It would all depend on how much harm could be shown to follow from the speech and the quality of the evidence supporting the proposition that such harm actually follows.
Which brings me to my third point. You say that “the issue in Brown was whether … violent video games … can be ‘harmful to minors.’” That is not close to correct, and this misunderstanding probably goes a long way to explaining why you disagree with the Court’s holding. A more accurate phrasing of the issue in Brown would be this: Has California proved that playing violent video games is so harmful to minors that preventing such harm is a compelling state interest? Note some of elements you overlook in your statement of the issue: (a) the level of proof required, (b) that the burden is on California to produce that proof, (c) that the harm must be so great that its prevention is a compelling state interest. One can think, quite reasonably, that playing violent video games is harmful to children (I wouldn’t let any children of mine have them) without thinking that California has *proved* that playing such games is *so harmful* that preveting that harm is a *compelling state interest.*
July 13th, 2011 | 10:21 pm
One would think that the reason obscenity is beyond First Amendment protection is because that which is obscene is not respectful of the inherent Dignity of the human person and is thus harmful to all persons. That being said, I noticed the on-line Law Dictionary states that the definition of person is “human being”. I suppose the part of the Oral Argument in Roe v. Wade where no one seemed to be able to define “person” was actually just a charade.
July 14th, 2011 | 10:14 am
Not to mention that the Law Dictionary defines Marriage as “the joining of a male and female in matrimony by a person qualified to perform the ceremony…”
July 14th, 2011 | 10:31 am
Gregory K. Laughlin
Good point, obscenity doesn’t enjoy 1st Amendment protection so the gov’t can ban it for adults as well as minors. “Harmful to minors” appears to be a standard by which normally protected speech can be regulated in order to shield minors.
The problem, though, is that you have to show that the material in question is actually harmful to minors. It’s fine that you assert that you ‘believe’ playing a video game in which there’s a decapitation is “harmful to the ethical and moral development” but IMO that’s insufficient. The actual evidence is both mixed and appears to be mostly a minor influence. One can object that we don’t have good scientific evidence that looking at porn is “harmful to the ethical and moral development” of minors as no reputatable institution will allow a clinical study where minors are given porn. IMO, though, the restrictions are relatively minor 1st amendment infringements and the “harmful to minors” is a resonable assumption to take given the observational evidence we have.
Unfortunately, Justice Scalia and the four justices who joined with him have slammed the door on any state action to aid parents in protecting their children from such harm.
I don’t see anything wrong with a state passing a law saying that a store must clear all video game sales thru a parent….or that a parent can provide a store with a list of acceptable and unacceptable games and the store must only sell based on that list. This wouldn’t be all that difficult. Many kids I know have Gamestop customer loyality cards and accounts. Gamestop could therefore comply with the law by allowing parents to store their list on their kid’s account. Private institutions could even produce customized and exhaustive lists that parents could subscribe too (for example, there’s a Catholic movie rating service….the same could be done for video games and a parent could set their kids Gamestop account to mirror the Catholic Game Rating list). That’s a much better solution IMO than enshrining the industry sponsored and unelected rating agency with some type of legal standing.
Nancy D
One would think that the reason obscenity is beyond First Amendment protection is because that which is obscene is not respectful of the inherent Dignity of the human person and is thus harmful to all persons.
No actually judges just made it up. Literally the First Amendment says nothing about obscenity being an exception. We have little way of knowing what those that wrote it would have thought. Originally the 1st applied only to the Fed. gov’t so the founders very well might have meant it to be taken literally….leaving states to regulate obscenity if they wished.
Your argument, though, falls flat. A lot of speech is disrespectful to the inherent dignity of the human person. For example, neo-nazie speech advocating genocide. There’s no exemption from first amendment protection there.
That being said, I noticed the on-line Law Dictionary states that the definition of person is “human being”.
It didn’t mention legal ‘virtual persons’ like corporations? Hmmmm…
July 14th, 2011 | 10:52 am
Though doubtless inadvertently, Nancy again helps me make my point.
To wit, she thinks that obscenity is beyond First Amendment protection beacuse it offends the inherent dignity of the human person. Now, there are many different ways of understanding morality, and not everyone thinks that morality is based on a notion of the “dignity of the human person” (these people notably include Plato, Aristotle, Augustine, Thomas Aquinas, Hume, and Mill). Hence, writing this particular theory of morality into the Constitution of the United States is a very dubious move.
More to the immediate point, however, is that it is easy to think of categories of speech that offend the inherent dignity of the human person that should patently receive the strongest First Amendment protection. For example, utilitarian moral philosophers think that there is *no such thing* as the “inherent dignity of the human person” (recall Bentham’s famous line that “natural rights is simple nonsense and natural and imprescriptable rights … nonsense upon stilts”). Now, surely books that deny the existence of inherent human dignity and seeks to justify the kinds of actions that utilitarians sometimes seek to justify (think Peter Singer here) will themselves offend the inherent dignity of the human person. Hence, on Nancy’s view, utilitarian moral tracts are beyond First Amendment protection and the government may ban them just as it may ban obscenity.
But of course this result is absurd, which shows that the question of whether certain speech may be suppressed by government is much more complicated than the question of whether such speech is good or bad, right or wrong, desirable or undesirable, etc.
July 14th, 2011 | 2:29 pm
Professor Miller, with all due respect, the fact that our Founding Fathers stated, unanimously, that it is a self-evident Truth that we have been endowed by our Creator with certain unalienable Rights, is evidence enough that they recognized that the basis for God endowing us with these unalienable Rights is the inherent dignity of the human person, and the purpose of these unalienable Rights, is what God intended.
July 14th, 2011 | 2:58 pm
They also considered rights to be limits placed on the state, not individuals. “I have a right to my human dignity” is not a tool they would have considered valid to use against someone who was uttering ‘hate speech’ against you.
It’s also not clear that obscenity is a violation of one’s ‘inherent dignity’. First in the Founders time, obscenity, if they thought about it, would have probably been either text (fictional stories) or pictures (engravings, drawings). The ‘porn industry’ did not really exist in that age the way it does today. Mass publication was just creeping over the horizon and pictures, video etc. was still in the future. They most likely would have said a person who wrote a series of ‘adult stories’ (like de Sade) wasn’t violating anyone else’s dignity and if he lost dignity doing such a thing it was his own low character that did it.
July 14th, 2011 | 3:01 pm
Nancy, all I can say is that I wish I lived in a world that was as simple and straightforward as yours. God you bless you.
July 14th, 2011 | 8:11 pm
Boonton, on the contrary, many of our Civil Rights exist to protect our inherent, unalienable Right to be treated with dignity and respect. On what basis do you make the claim that it was the intention of our Founding Fathers to protect speech that any reasonable person would agree is harmful, and in some cases, diabolical in nature?
Professor Miller, thank you for the Blessing and may God Bless you as well.
July 15th, 2011 | 12:42 pm
Civil Rights laws protect from action, not speech. You are free to make a speech that, say, blacks are less than human. You are not free to act in a way that treats blacks less than human.
July 15th, 2011 | 7:31 pm
Boonton, you did not answer my question.
July 16th, 2011 | 12:48 am
On what basis do you make the claim that it was the intention of our Founding Fathers to protect speech that any reasonable person would agree is harmful, and in some cases, diabolical in nature?
The Founding Father’s themselves wrote:
“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”
The roundabout language may be confusing, by “Importation” they meant slaves and they were specifically allowing the importation of slaves to be permitted for at least twenty years and prohibiting any possible attempt to stop it by law….except for allowing a modest tax.
So there you have the Founders themselves embracing speech that violated the dignity of human beigns. Before you say the Founders may have simply been mistaken, believing in error that maybe slavery wasn’t so bad note the numerous comments made about slavery by various Founders cited in http://www.usconstitution.net/consttop_slav.html. Many of them openly asserted it was an evil, yet nonetheless embraced language which protected it for at least 20 years.
You began this line by getting upset about courts ‘redefining’ the plain meaning of words yet it seems to be you that’s doing the redefining. The plain meaning of ‘freedom of speech’ is ‘freedom of speech’….the plain meaning is not ‘freedom to have your speech regulated should it violate ‘human dignity’ which means whatever Nancy wants it to mean’.
July 17th, 2011 | 9:29 am
No doubt, some of our Founding Fathers are guilty of embracing language which protected a form of slavery that violated the inherent, unalienable, Right of all human individuals to be treated with Dignity and Respect. Only God knows where we would be today, had we not compromise this self-evident Truth, to begin with.
On what basis do you make the claim, Boonton, that it was the intention of our Founding Fathers to protect speech that any reasonable person would agree is harmful, and in some cases, diabolical in nature?
July 17th, 2011 | 11:55 pm
The Founding Father’s who embraced the idea that slavery was evil provide us with no evidence that they believed those who supported slavery should not be accorded freedom of speech.
Once again, the plain meaning of ‘freedom of speech’ is ‘freedom of speech’. If you want to claim they really meant “freedom of speech except when its….” then I believe the burden of proof is on you to show us that is what they meant.
No doubt, some of our Founding Fathers are guilty of embracing language which protected a form of slavery that violated the inherent, unalienable, Right of all human individuals to be treated with Dignity and Respect. Only God knows where we would be today, had we not compromise this self-evident Truth, to begin with.
You really seem to have an interesting way with words. If something is unalienable then to me that would seem to mean it’s something you can’t take away. It doesn’t matter if taking it away for a little while makes life easier, an unalienable right by definition should be something that can’t be compromised….it’s kind of odd to think that you are asking us to be thankful that an unalienable right was alienated for a little bit….kinda like saying “Thank God the unbreakable glass window broke!”
Anyway, freedom of speech means freedom of speech. Neither evidence nor logic would imply it was intended to mean what you seem to be claiming it to mean.
July 18th, 2011 | 8:52 am
Freedom of Speech is not absolute. An example of speech that is not protected is that which provides a clear and present danger.
Although it is true that an unalienable Right cannot be taken away, there are those who have tried to compromise these rights, for example, by denying that a person refers to every human individual from the moment they are brought into being, regardless of Race or ethnicity, at Conception.
To be clear, it is never a good thing to deny or compromise an unalienable Right because all our unalienable Rights are grounded in our inherent, unalienable Right to be treated with Dignity and Respect, which is why every form of slavery is a violation of our fundamental unalienable Rights.
Boonton, since it is true that Freedom of Speech is not absolute, on what basis do you make the claim that it was the intention of our Founding Fathers to protect speech that any reasonable person would agree is harmful, and in some cases, diabolical in nature?
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