What Posner Said.

Posted in Anticipation by Mike Sacks on November 1, 2010

Tomorrow morning, the Court will hear Schwarzenegger v. Entertainment Merchants Association. As far as I’m concerned, the question of whether government may ban the sale of violent video games was answered nearly ten years ago by a unanimous Seventh Circuit panel decision penned by Judge Richard Posner:

The issue in this case is not violence as such, or directly;  it is violent images;  and here the symmetry with obscenity breaks down.   Classic literature and art, and not merely today’s popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial.   The notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity. […]

People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants;  or The Divine Comedy with its graphic descriptions of the tortures of the damned;  or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds.   Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula).   Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.   It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware.   To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming;  it would leave them unequipped to cope with the world as we know it.

Maybe video games are different.   They are, after all, interactive.   But this point is superficial, in fact erroneous.   All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive;  the better it is, the more interactive.   Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.   Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred.   The cult of Sherlock Holmes is well known.

Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories.   Take once again “The House of the Dead.” The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo.   The zombies have already knocked down and wounded several people, who are pleading pitiably for help;  and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies.   His main task, however, is self-defense.   Zombies are supernatural beings, therefore difficult to kill.   Repeated shots are necessary to stop them as they rush headlong toward the player.   He must not only be alert to the appearance of zombies from any quarter;  he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the “undead,” fighting against overwhelming odds-these are all age-old themes of literature, and ones particularly appealing to the young.  “The House of the Dead” is not distinguished literature.   Neither, perhaps, is “The Night of the Living Dead,” George A. Romero’s famous zombie movie that was doubtless the inspiration for “The House of the Dead.” Some games, such as “Dungeons and Dragons,” have achieved cult status;  although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons.   We are in the world of kids’ popular culture.   But it is not lightly to be suppressed.

Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, “Ultimate Mortal Kombat 3.” A man and a woman are dressed in vaguely medieval costumes, and wield huge swords.   The woman is very tall, very fierce, and wields her sword effortlessly.   The man and the woman duel, and the man is killed.   Another man appears-he is killed too.   The woman wins all the duels.   She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood.   Of course, her success depends on the player’s skill, and the fact that the player, whether male or female, has chosen to be the female fighter.  (The player chooses which fighter to be.)   But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men.   It thus has a message, even an “ideology,” just as books and movies do.

American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001). certdenied 534 U.S. 994 (2001).

One need not be a First Amendment absolutist or doctrinal purist to find California’s ban as problematic as the Indianapolis regulation at issue in American Amusements.  In true Posnerian spirit, there is an economics-driven, pragmatic reason California’s law must fall.

Indianapolis’s regulation required minors to be accompanied by their parents in order to play violent arcade games.  Gamers with a sense of history can correct me if I’m wrong, but the most high-end arcades cost a dollar or so to play in 2000.  For minors, that’s a far lower bar to clear for access to violent video games than the $60 home console-based games at issue tomorrow morning.  If the state’s paternalism a decade ago could not thwart the constitutional rights of a kid with a fistful of couch-found quarters, then similarly doomed should California’s ban be against today’s games, for which a parent’s consent-by-pocketbook is the de facto state of play.

This piece is cross-posted at The CockleBur.

One Response

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  1. Miguel said, on November 2, 2010 at 9:09 am

    For all that Posner can be hideously, horribly wrong at times (at least IMHO – see, e.g. Crawford v. Marion County Election Bd.), when he’s right he so obviously is.

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