Won’t Somebody Think Of The Children? So I Don’t Have To…

Original Post: June 28 2011 (Kotaku AU)

The US Supreme Court has ruled that videogames are like other forms of media in that they express ideas and are therefore deserving of the same protection under the First Amendment. Specifically this ruling was made in response to a California State proposal that would ban the sale of ‘ultra-violent’ videogames to minors. This situation is almost a perfect inverse to the what we now face in Australia, and may help us to understand our own circumstances better.

First a criminally broad background discussion of the American Constitution, which is a wonderfully idealistic document that has influenced every aspect of American government for over two hundred years.

Generally, the spirit of the Founding Fathers was one of individual liberty, enshrining the rights of men to live their lives largely unencumbered by oppressive government. The government was there to provide for the society, but a society made up of individuals with their own capacity to make decisions and duty to accept responsibility for their actions. The idealism boiled down to many practical rights, such as the right to bear arms as to facilitate the raising of a powerful militia to oppose the national military, should the need arise. The right to privacy, including requiring the government’s agents to secure a warrant, through the judicial system, to prevent unreasonable searches of a man’s home. The right to free religion. And finally the right to freedom of expression, to prevent the government from silencing dissent. The earliest Americans experienced a need for all of these things, under the rule of the British monarchy, which led to the founding of the United States in the first place.

I have lived in Australia for almost 15 years, and am an Australian citizen, but I was born in the United States. I have had the American sense of individuality engrained in me right through my childhood and increasingly supported by rational decisions into my adult life. Notions of personal freedom coming at the cost of personal accountability are second-nature to me. I believe it is absolutely the right of each person to make his or her own decision, with the knowledge that decisions have consequences that one cannot shirk. From this perspective it is difficult for me to fathom the reasoning behind a government mandating what I can and cannot put in my PlayStation 3. If anything, living in a country that was not founded on this principle has caused it to become stronger within me.

In Australia, personal rights are much weaker than in the US. There is no precise equivalent to the Bill of Rights for Australian citizens, for example. There is a provision for free speech in the Australian constitution, but it only applies to political speech (perhaps explaining the idiotic performances in parliamentary question time). As a result, the government has always had the power to regulate artistic expression, legally. So, here we have a National Classification Scheme, which is a piece of legislation that brings the full weight of the punitive justice system to bear on infringements.

Historically the earliest incarnation of the Classifications Board was in a single agent known as the Chief Censor, who was part of the Customs Department. He, and his subordinates, literally checked books and reels of film as they entered the country for obscene content. Their aim was to protect the morality of Australian society from the evils of the outside world. Now, our classifications mostly revolve around the protection of children, and so the sale of many types of media to minors is an offence. Yet this notion of preserving the overall purity of Australian society remains in the legal ability of the government to expunge certain content from the country entirely.

Of course the United States has a range of classification schemes as well, but they are not legally enforceable. The Motion Picture Association of America (MPAA) and the Entertainment Software Ratings Board (ESRB) are industry sponsored bodies that work to satisfy the community’s desire to protect children from material that may be difficult for them to manage. Whether the film, for example, is very violent, sexy, full of obscene language, or even simply scary, the MPAA will weigh these factors against their standards, and make a recommendation for rating. In effect, the MPAA or ESRB work very much the same way as our own NCS, only they cannot make arrests if a person doesn’t follow the rating, as they are only guidelines. They do not attempt to control citizens, only to advise them.

The American system rests on that assumption that people are free to make their own decisions, because they are ultimately responsible for themselves. Further, parents are responsible for raising their own children. The opponents of an R18+ rating here in Australia show surprising contempt for the ability of parents to act as such, especially considering that some of the loudest voices come from family and parenting groups such as the Australian Council for Children and the Media. In the ACCM submission to the SCAG consultation in 2010, the group claims that the “present sale and hire system prohibitions are not effective in preventing access by minors.” They also respond by rewriting one of the questions regarding the potential R18+ game rating from a suggestive to a declarative. The question read: “Is it difficult for parents to enforce age restrictions for computer games?” In the space for response the ACCM wrote: “This question should read ‘It is difficult for parents…’” (Italics in ACCM source)

This group, more than others, also claims widespread illiteracy in the NCS, and that an R18+ rating would only confuse the issue, where “the message that an R18+ category might send is unnecessary if such games were Refused Classification.” Time and again they demonstrate a preference for governmental censorship over the expectation of parental vigilance and decision-making, as well as completely ignoring the right of adults stated in the NCS code to consume what media they want.

Australian parents are, according to the R18+ opponents, so inept that it is literally inevitable that, should adults-only games be allowed to exist in this country, children will get their hands on them, they will be mentally and emotionally damaged by the content, and in sufficient numbers that the problem warrants a federal law banning them more strictly than alcohol, cigarettes or operating an automobile.

The ruling of the Supreme Court this week takes an astonishingly different position, particularly Judge Scalia’s opinion. His opinion could be used as a point-by-point counter to the arguments presented from the anti-R18+ camp over the past … aeon:

Firstly he refutes the assertion that because of interactivity, videogames should be considered specially apart from other media, which is the fundamental reason that the R18+ rating wasn’t included in the Australian NCS in the first place. Had Scalia been part of the Classifications Board in the 1990s, this may never have been a problem for us.

“Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny-a question to which we devote our attention in Part III, infra. Even if we can see in them ‘nothing of any possible value to society… they are as much entitled to the protection of free speech as the best of literature,’” says Scalia.

Second, he refutes the science that is always trotted out to demonstrate that any time a child plays a violent videogame, they are made more violent: “California relies primarily on the research of Dr Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, ‘[n] early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.’” I cannot actually explain why this point has been so difficult to make in the Australian debate. Those who use this research, time and again, to support their ideological position simply refuse to abide by the logic, rather than opinion, expressed here by Scalia.

Finally, the most basic point for me is the government’s role in all of this in the first place. Is it not the parents’ place to act as parent to our children? Scalia says: “While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights require.”

Here, he clearly states that it is not the government’s place to determine for its citizens what constitutes appropriate or inappropriate media. Some parents may indeed feel their children should not be exposed to certain videogames, as is their absolute right. But do they need a federal law to ensure this happens? In Australia, only the unsupported claim that children will access whatever media they want justifies our law. And what of the parents who do not feel their children need to be restricted from this media? This Californian proposal would restrict them from making their own choice, so effectively the pro-restriction parents are acting as guardians for all American children—as the NCS currently acts not only for Australian children, but Australian adults as well.

Surely here in Australia, we can see the sense in this decision. Surely Australians are not more primitive beings than our American counterparts that we cannot parent our own children, nor discern gameplay from reality. Surely there is some merit in a Supreme Court ruling that the science of Anderson et al. is not the last word on media effects. Surely the fact that the MPAA and ESRB have emerged in a country where this is no legislated requirement for classification demonstrates that a community can work together with industry to maintain a civilised society. Is Australia less able to do the same? Our government certainly seems to think so.