Mid-September, 2011
Mary Bailey, Editor
the watchfuleye@rcn.com

PRINTER FRIENDLY VERSION

High Court Oks Violent Video Games for Kids

By Mary Bailey

Retailers may now sell violent video games to children under 18, according to the June 27, 2011 Supreme Court decision Brown v. Entertainment Merchants Association. In 2005, California had passed a law banning such sales and fining retailers $1,000 for each offense. The state defined a violent video game as one giving a child the choice of killing, maiming, dismembering, or sexually assaulting an image of a human being. As Marcia Coyle of The National Law Review described the games on the PBS Newshour that evening, “There’s everything. There’s shooting. There’s killing. There’s rape. There’s urinating on women and children.”

Studies show, California had argued, that children who play violent video games for many hours become desensitized to violence and behave more aggressively. The video game industry countered, its main argument being that violence in video games should be treated the same as violence found in other forms of entertainment. Agreeing with the industry, Justice Antonin Scalia wrote the 7-2 decision.

What Scalia said

Violence or no, said Justice Scalia, the games are protected by the First Amendment just the same as are books, plays, and movies which also contain violence. He said if the court were to agree with California, it would be creating a new category of unprotected speech. However, the Supreme Court has permitted restrictions on speech in only a handful of cases – those involving obscenity, fighting words, or incitement, he said. Instead, the United States has a long tradition of allowing minors access to violent content. Take, for instance, the birds who plucked out the eyes of Cinderella’s evil stepsisters, or Hansel and Gretel who baked the wicked witch in an oven.

Ah, you might say, but there’s a difference. Children reading Cinderella cannot themselves pick up a virtual weapon and pluck out the wicked sisters’ eyes as they can in an interactive video game, nor can they use video games to repeatedly simulate violence until they become desensitized to it. Scalia, however, was having none of that. For California’s law to pass scrutiny under the First Amendment, he said, it must have a compelling reason and be narrowly drawn. And he found that not to be the case. He said the studies California cited were insufficient, inconclusive, and conflicting. Furthermore, the law singled out only violent video games and ignored the violence in movies and books. Finally, he said, some minors have parents who don’t care what they watch, yet under California’s law such children wouldn’t be allowed to buy violent video games.

Dissenters and near-dissenters

Technically,” said Nina Totenberg of NPR News that same evening, “the court was split 7-2, but the various concurring and dissenting opinions more closely resembled a 5-4 decision.” Justices Clarence Thomas and Stephen Breyer were the decision’s two dissenters. Justice Thomas dismissed Scalia’s argument with the originalist argument that the First Amendment was not intended to cover children. (Curiously, Scalia, originalism’s foremost champion, did not pursue this train of thought.) The second dissent came from Justice Breyer who, relying on studies linking violent video games and aggressive behavior, said the California law passed First Amendment muster and should be upheld.

More significant in our estimation, however, are the two near-dissents, by Justice Samuel Alito and Chief Justice John Roberts, who voted with the majority but wrote a separate opinion. Penned by Alito and concurred by Roberts, their opinion rejected the California law – not because they okayed the sale of violent video games to kids, but because they thought the law too vague. However, they found Scalia overly hasty in dismissing the differences between yesterday’s fairy tales and today’s video games, noting that “the experience of playing video games may be very different from anything we have seen before.” For example, Alito wrote, “The objective of one game is to rape a mother and her daughter,” while in another “players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.” Soon, he warned, technology might develop gear allowing children to “actually feel the splatting blood from the blown-off head.”

Justice Scalia acknowledged that the violent video-game images Justice Alito observed and which are now available to children do invite revulsion. “But disgust,” he wrote, “is not a valid basis for restricting expression.”

What’s wrong with disgust?

Since disgust is a fairly common reaction to allowing kids of all ages to simulate the killing, rape, and urinating on women and children through video games, I have tried to unearth the reasoning behind Justice Scalia’s statement. What seems to be its source is a scholarly movement applied to tort (harm) and contract cases called “law and economics” or “legal economics.” Gaining traction in law reviews, law classrooms and among high-ranking judges and justices, this school of thought rejects judicial findings based on empathy. While a more traditional judge might find games allowing children to simulate the rape of a mother and her daughter “unconscionable” and “shocking to the conscience,” legal economists would say such a finding is paternalistic – or, to quote conservative Richard Posner, the appeals court judge who in 2006 un-banned Indianapolis’s violent video-game sales to children, “to shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming, and leave them unequipped to deal with the world as we know it.”

Instead of judicial decisions based on empathy toward a weaker party, legal economists believe a judge’s concern should be rationally based on the social sciences, primarily economics, explains Robin West of Georgetown University Law Center in her July 2011 article, “The Anti-Empathic Turn.” However, decisions still continue to depend on the judge’s viewpoint, she says. If a court’s goal is future social welfare “rationally construed,” then it might reject an opinion such as Judge Posner’s Indianapolis decision. But if a judge favors individual choice, then “he might let the perverse or irrational market choice lie,” as Justice Scalia seems to have done. “Either way,” says West, “the decision is not informed by empathy, and most decidedly not motivated by either disgust with immoral business behavior, or with a sympathetic identification.”

What now?

Does Justice Scalia’s decision mean we must swallow our disgust with violent video games for kids? Well, maybe not. Two possibilities present themselves. The first was suggested in Nina Totenberg’s remarks the evening of his decision. Added together, she said, the Alito, Roberts, Breyer and Thomas opinions reduce the actual support for Scalia’s ruling from a strong 7-2 to a debatable 5-4. We can be heartened that the history of Supreme Court decisions is threaded with dissents that later become the bases for new law. Whether it comes from a court or an act of Congress, the wisdom of inflexibly applying legal economic theory to children can still be reconsidered.

The second possibility is the growing recognition of “behavioral economics,” a school of thought that, like legal economics, rejects judicial decisions based on empathy in favor of those founded on observable, quantifiable, scientific facts – but that also considers research from cognitive psychology a source of scientific information.

Cognitive psychology has become a mature science since the days when legal economists disdained psychological research as not stringent enough, West says. Today, cognitive psychologists challenge the economic assumption that humans are rational actors who make decisions that maximize their well-being. Rather, their research shows that humans make biased decisions that sometimes run counter to their best interests. Even intelligent and well-educated people make poor decisions, they say, and many people have only a vague idea of how their choices will affect their future. Since such irrational behavior is observable and quantifiable in adults, think how much more susceptible to irrationality are children who opt for violent video games.

Just last month, a Washington Post editorial (on Miranda rights for children) said, “The Supreme Court has in other contexts concluded that children cannot be viewed as ‘mini adults’ under the law because they lack the maturity and foresight to understand the full consequences of their actions.” Nevertheless, Justice Scalia preferred to elevate children’s individual choice to play violent video games above a concern for their future welfare. Our hope is that developments in science, including neuroscience, will prevail to discredit this stance of rigid individualism. To that end, The Watchful Eye covers scientific research, such as those below, as they come to our attention:

“This is Our Brain in Adolescence”

“Numbed to the Pain of Others”

“The Sexualization of Girls,” American Psychological Association report,. Or: see a summary at http://www.mcmdnow.org/newsletters

 

Blighted Hopes

U.S. Schoolgirls Help Others in Mali

By Fran Porter

School Girls Unite helps girls in Mali follow their dreams. It started in Baltimore, Maryland, in 2003. The mission of the organization is "…to tackle prejudice against girls worldwide and expand their freedom and opportunities through education and leadership."

Inspired by efforts at the United Nations to establish an international Day of the Girl, School Girls Unite has asked President Obama to issue a Proclamation making September 22, 2011, the Day of the Girl.

On that day girls around the United States will work in their own neighborhoods to raise awareness of gender-based stereotypes and discrimination that prevent girls from reaching their full potential in the United States and in other countries.

One girl …

Miriam is a 10-year-old girl who lives in Mali. Like many others, she wakes up before dawn and spends the next hour walking to the river to bring back water and firewood. She cooks porridge for her family's breakfast, washes dishes and sweeps. Then she goes to school. She is very careful not to lose her one pencil, her Bic pen and her composition book. There are no textbooks in Miriam's crowded classroom, only a blackboard. It is very hot in Mali. She wishes there were a well so she could get some water. She also would like separate latrines for girls and boys.

Miriam is lucky. Only 17 out of 100 females in Mali can read. More than half the girls enrolled do not graduate from elementary school. The country offers an extreme case of sexualization of girls: Over half—65 percent—become child brides before the age of 18.

… Among many

Mali is not alone. According to the International Center for Research on Women, 100 million girls under 18 will marry over the next decade. Child marriage is a major reason girls are denied education. More than half of the girls in Bangladesh, Mozambique and Niger also are married before age 18. In those countries, more than 75 percent of people live on less than $2 a day.

Girls in many countries are considered property, and parents marry them rather than educate them. Primary school is not free in 100 countries. Girls are burdens to marry off so that meager family resources can go to boys. Sometimes dowry plays a part.

How it works

School Girls Unite has chapters in the United States and in Mali. Their sister organization in Mali is called Les Filles Unies pour l'Education. School Girls Unite collects donations to finance its school that educate 66 girls each year. In addition to financing education, the organization has led workshops for young girls in public speaking and advocacy. The organization's scholarship students and young women leaders in Mali make speeches, do radio interviews and plan events to raise public awareness of the importance of education for girls.

Education is the starting point for solving many of the problems of developing countries, including poverty, over-population and corruption. Studies show that educating girls is particularly important because educated girls and women tend to help their villages. They become small entrepreneurs and local leaders, changing the outlook and improving the future one village at a time. Girls in chapters of the organization in the United States support the work in Mali by spreading information about the needs of girls there and by raising funds to support them.

Sightings

Protestors lambasted JLN Pole Fitness in Bolton, northern England, for teaching seven-year-old girls to pole dance and then posting photos of them on the internet. The pictures show the girls upside down on the poles and wearing shorts and crop tops. However, the parents, too, are responsible, for they agreed before the photos were placed on Facebook. Said local council Nick Peel, who oversees children's services in the area, "It's a dangerous world on the Internet. People need to be aware of the situation they can be putting children into." (myfoxy.com, 7-27-11. Thanks to Krysta Jones for bringing this to our attention)

Those aren't Back-to-School catalogues you picked up, says the New York Post, they're the new fall ad campaigns in the fashion magazines. In one ad for the Marc Jacobs clothing line, 13-year-old actress Elle Fanning stands "vacant-eyed in front of a wall," while in another her 17-year-old sister Dakota "gazes seductively at the camera as she lounges on the floor in a pink dress – with a bottle of scent suggestively between her legs." Miu Miu ads present 14-year-old Hailee Steinfeld of the acclaimed film "True Grit" sitting "by a stretch of railroad tracks, wearing high heels while rubbing her eyes like a tired child." Said Jim Steyer, CEO of the advocacy group Common Sense Media, "The fact that they're using a 13-year-old and a 14-year old [to sell adult fashions] is very questionable. Just their ages alone shows poor judgment. It's the premature over-sexualization of young girls." Explaining himself to New York magazine, Jacobs said, "I'm by no means a pedophile, but there's a purity in youth. All that is more intriguing to me than knowing, headstrong, oozing sexuality." (www.nypost.com, 8-01-11. Nancy Nyland's alert eye caught this one.)

"Toddlers & Tiaras," TLC's show on baby beauty pageants, is "bizarro," says The Clicker. In a late August program, mother Lindsay packed size-C falsies into 4-year-old Maddy's Dolly Parton costume. When her stylist Michael Booth asked Maddy, "Do you like boobies in your outfit? You'd be just as cute without them, wouldn't you," Maddy insistently replied, "No!" In an early September show, 2-year-old Mia, covered in a white angel costume, did a sort-of dance around the stage. Then she flung it off and sort-of danced in a tight and shiny metallic dress with a pointy Madonna-type bra. When she didn't know how to shake her hips, her mother helpfully stood behind her and wiggled them for her. The following week, 3-year-old Paisley was dressed up like Julia Roberts in her "Pretty Woman" prostitute role "to strut in front of laughing judges." One pageant mom was disgusted: "I would never ever do that to my little girl," Tommy said. "Us pageant moms already take a huge rap for what we're doing to our little girls. And it's outfits like that that give us a bad rap." (www.theclicker.com, 8-31-11 and 9-01-11, and www.huffingtonpost.com, 9-04-11. Thanks to Holly Joseph and John Keller for the heads-up.)

"Has nothing changed?" Margot Peters rhetorically asked The Watchful Eye. "When I was in fourth grade my teacher told me not to raise my hand with an answer so often because 'The boys won't like you, dear.'" Margot pointed to J.C. Penney's back-to-school T-shirts for girls sporting the logos, "I'm too pretty to do homework so my brother does it for me," and "Future Trophy Wife." Parents who buy such shirts for their daughters, she wrote, "ought also to be forced to buy pink T-shirts for themselves with the logo, 'I am a neanderthal sexist mom.'" Then The Daily Beast reported another Penney's T-shirt with "Who has time for homework when there's a new Justin Bieber album out?" splashed across the front. This shirt, The Daily Beast reported, "quickly became a viral sensation, with people tweeting in disgust and signing an online petition for the shirt to be removed from the shelves." J.C. Penney quickly released a statement saying it would stop selling the shirt immediately. But questions remain: Did the store really remove it? What about the other sexist T-shirts? According to TWE scouts in Maryland and Wisconsin, all such tees are gone. Nevertheless, coming after the protests over Wal-Mart's cosmetics and Abercrombie & Fitch's padded bras for little girls, it's disturbing that selling inappropriate products for little girls is a growing trend. The pattern seems set: the ad, the protest, the retraction. To use Tony Judt's phrase, in "the way we live today," even J.C. Penney finds the cheap publicity irresistible.

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