Editorial: The Terminator vs. the Constitution

An excellent editorial appearing in the February 2011 issue of Reason Magazine explains quite plainly why it is ridiculous that California is fighting for the 2005 law written by Leland Yee and signed into law by then-California Gov. Arnold Schwarzenegger. Writer Jacob Sullum starts the article by pointing out the irony of Arnold signing into a law a bill that bans violent media.

This from the same guy who starred in movies like Eraser, Commando, Terminator 1 and 2, End of Days, Last Action Hero, Predator, Total Recall, The 6th Day, and many more. Most recently, he did a cameo in The Expendables – an ultra violent action movie starring an all-star cast of aging action stars.

I certainly don’t begrudge Arnold for making a living, but the bulk of his career was spent making gratuitously violent movies – some of which spawned video games – and yet he signs into law a bill that punishes other artists.

The article then goes on to discuss why this law is flawed to its core:

California Gov. Arnold Schwarzenegger, who starred in violent movies that have inspired several violent video games, nevertheless argued that the Court should uphold the law (which he proudly signed) by extending the logic of a 1968 decision that allowed states to impose age restrictions on sales of pornography. But that ruling was based on the obscenity doctrine, which holds that certain kinds of sexual material are beyond the scope of the First Amendment even for adults.

The Court has never taken such a position with respect to violence. Furthermore, as two industry groups note in their challenge to California’s law, “Depictions of violence, unlike obscenity, have played a longstanding and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to Star Wars and Harry Potter.”

 

Although California’s law applies only to video games, the principle espoused by its defenders would authorize censorship of other media as well—a point that several justices made in their questions during oral arguments. “Some of the Grimms’ fairy tales are quite grim,” noted Antonin Scalia. “Are you going to ban them too?” Ruth Bader Ginsburg had similar concerns. “What about films?” she asked. “What about comic books?” In light of research indicting cartoon violence, Sonia Sotomayor wondered, “can the legislature…outlaw Bugs Bunny?”

The government’s lawyers have always had a difficult time explaining why violence is an exception to this specific medium and not others like books, movies, and even comic books. Are games really more excessively violent than movies like Saw or The Last House on the Left? And hasn’t the FTC said that the video game industry has a better record of turning under-age kids away from product, when compared to movies and music?

The article closes with this important gem:

Despite the far-reaching implications of the constitutional license California seeks, it complains that it cannot reasonably be expected to supply “empirical proof of how expressive material impacts such nebulous concepts as one’s ethics or morals.” It could avoid this problem if it stopped using such nebulous concepts to justify censorship.

Truer words have never been spoken. Read the rest here, even if you don’t subscribe to Reason’s other political views.

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