Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, October 16, 2009

Video Game Speech and the Protection of Children

Renee Newman Knake, Michigan State University College of Law, has published "From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations," in the University of Toledo Law Review (forthcoming). Here is the abstract.
The dominant influence of mass media on children is recognized by experts across many disciplines including child development, communication theory, psychology, sociology and the medical profession. Numerous studies demonstrate potential harm to children from exposure to mass media and marketing sources. The prevalence of childhood obesity and increased violent behavior in adolescents are among the suggested negative effects. Nevertheless, courts have been reluctant to recognize such consequences, primarily on the basis of the First Amendment and free speech concerns. Indeed, in a significant line of cases the courts have invalidated every legislative effort to regulate children’s access to violent video games. This legal reluctance presents a major barrier to the real world application of and benefit from research conclusions regarding the impact of media violence and consumer culture on children. While research of this nature has supported attempts at industry self-regulation or voluntary compliance with ethical guidelines, such efforts have achieved little success.

The disconnect between law and social science has led scholars like Professor Barbara Bennett Woodhouse to propose a reframing of the issues. She calls for a paradigm shift from family law’s traditional approach of the parent-child-state triangle to recognize the influence of what she terms 'mass-media marketing.' She proposes a new 'a child-centered approach to environmental ethics,' or, in her words 'ecogenerism,' and suggests that those who advocate for protection of children from the harms of mass media and marketing have much to learn from the environmental law and ethics movement.

Woodhouse’s proposal offers an appealing perspective for those who support regulation of children’s access to harmful media. The real issue, however, is whether ecogenerism will evolve from academic theory to actual practice. This article tests her theory by revisiting the line of violent video game cases to evaluate whether her ecogenerist perspective can achieve any real change in the courts’ conclusions. Particular attention is devoted to challenges presented by First Amendment free speech protections, with a primary focus the Ninth Circuit’s recent decision in Video Software Dealers v. Schwarzenegger to invalidate a California statute prohibiting the sale or rental of violent video games to minors, a decision that Governor Schwarzenegger has petitioned the United States Supreme Court to review. While some speculate that the Supreme Court is unlikely to grant review given the uniform position of other courts on this issue, this article reveals that a ecogenerist perspective would contend that the Court ought to grant review precisely for that reason. Moreover, without a definitive ruling from the Supreme Court on the issue of whether extreme, graphic violence constitutes protected speech, lower courts likely will continue to strike down legislative restrictions on children’s access to violent video games notwithstanding the negative effects documented by the social science. Should the Court decline to take the case or uphold the Video Software Dealers statute, the article concludes by proposing recommendations for future research and regulatory efforts from an ecogenerist perspective.
Download the article from SSRN here.

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