How a 42-Year-Old Porn Might Screw Video Games

"Censors are, of course, propelled by their own neuroses. That is why a universally accepted definition of obscenity is impossible. Any definition is indeed highly subjective, turning on the neurosis of the censor."

So said U.S. Supreme Court Justice William Douglas in 1968, arguing against most of his colleagues who felt that selling nude magazines to minors should be a criminal offense. The courts, he said, should not decide what's suitable for people to read. That decision is best left to parents or religious groups.

As today's Supreme Court grappled with the legality of selling violent video games to minors, Douglas' dissent in Ginsburg v. New York seemed as relevant as ever.

The state of California wants an exception to the First Amendment for excessively violent video games, making their sale to minors a crime. Not surprisingly, California's deputy attorney general, Zackery Morazzini, said the case is similar to Ginsburg v. New York, except that the exception applies to violence instead of sex. (You can read the whole transcript at Scribd.)

Here's the problem: No one in court could define what level of violence qualifies as excessive. Morazzini couldn't say off-hand whether Mortal Kombat is obscene under California's law, and the state only pointed to one game as an example in its briefs, the long-forgotten Postal 2. In the end, Morazzini proposed that jurors could decide on what's passable, and that the games industry would surely figure out the answer on its own.

Read that Douglas quote again.

I don't think kids should watch porn or play violent video games. Neither did Douglas, but he felt that the government shouldn't have a role in the decision, lest the world's anti-obscenity crusaders someday decide that adults need "protecting" as well. Had Douglas' fellow justices agreed, the U.S. Supreme Court probably wouldn't have considered violent video game laws today. Instead, much of today's hearing was spent fumbling over what, exactly, constitutes "deviant or morbid" violence.

It's certainly possible that the court won't be satisfied with California's vague definition, and will overturn the law. Maybe I'm just a free speech nut, but I'm no less settled by the idea that the court would accept a line in the sand.

By Jared Newman

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