The United States Supreme Court is still mulling over the friend of the court brief filed by Senator (and child psychologist) Leland Yee, the California Psychiatric Association, and the California Psychological Association - it’s all about minors and the regulation of violent video games.
The team behind the brief: A psychiatrist, psychologist/Senator and a lobbyist, that’s what it takes. As they appeared at a recent news conference at the State Building in San Francisco:
The video game industry is not amused, needless to say.
Read the friend of the court brief, after the jump.
IN THE
Supreme Court of the United States
————
ARNOLD SCHWARZENEGGER, In His Official Capacity as Governor of the State of California, and EDMUND G. BROWN JR., In His Official Capacity as Attorney General of the State of California,
Petitioners,
v.
VIDEO SOFTWARE DEALERS ASSOCIATION AND ENTERTAINMENT SOFTWARE ASSOCIATION,
Respondents.
————
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
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BRIEF OF AMICUS CURIAE OF CALIFORNIA STATE SENATOR LELAND Y. YEE, Ph.D., ASSISTANT PRESIDENT pro TEMPORE, THE CALIFORNIA PSYCHOLOGICAL ASSOCIATION, AND THE CALIFORNIA PSYCHIATRIC ASSOCIATION IN SUPPORT OF PETITIONERS
————
INTEREST OF AMICUS CURIAE 1
Senator Leland Y. Yee is the author of the Califor-nia statute which is at the core of this case. He
1 Pursuant to Rule 37.6 of the Supreme Court of the United States, counsel for amicus curiae authored this brief in whole, and no counsel for a party authored this brief in whole or in part, nor did any person or entity, other than amicus, its mem-bers, or its counsel make an monetary contribution to the prep-aration or submission of this brief.
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serves the California Senate as the Assistant Presi-dent pro Tempore. Prior to involvement in elected office, Senator Yee earned a doctorate degree in Developmental Psychology at the University of Hawaii and then worked in various mental health and school settings.
Prior to serving in the California Legislature, Dr. Yee spent eight years on the San Francisco Unified School District Board of Education where he worked for the improvement of the education system for school children. During his tenure in the Legislature, Senator Yee has fought for children, mental health services, working families, open government, and civil rights. In addition to authoring legislation pro-tecting minors from the harmful effects of ultra-violent video games, Senator Yee has passed other laws geared to safeguarding children.2 Likewise, of equal interest is the fact that Senator Yee has worked to defend and guarantee the constitutional right of free speech.3
2 Most notably, in 2004, he authored legislation protecting children from being exploited through prostitution and has been acknowledged for his work by receiving the Special Friend of Children Award by the National Association of School Psycholo-gists.
3 For his legislative and community efforts, Senator Yee has also been honored with the Freedom of Information Award by the California Newspaper Publishers Association. In addition, as result of his work for public access, open government and free speech rights, Californians Aware named Yee “Senator Sun-shine.” His legislation includes laws protecting high school and college teachers and other employees from retaliation by admin-istrators as a result of student speech. In fact, Senator Yee authored legislation making California the first state in the nation to specifically prohibit censorship of college student press, including school newspapers and broadcast journalism.
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The California Psychiatric Association is a non-profit corporation whose member psychiatrists are medical doctors specializing in the comprehensive care of adults and children with mental and emo-tional disorders that stem from biological and psy-chosocial causes, including those with drug and other addictions. The Association is dedicated to the pre-vention and treatment of mental disorders; to the furtherance of psychiatric education and research; and to the furtherance of psychiatric procedures for the public welfare. The Association has approx-imately 3,500 members, and is a component, Area 6, of the American Psychiatric Association, the largest professional association of psychiatrists in the United States.
The California Psychological Association and the California Psychiatric Association, as with Senator Yee, are concerned about the mental health of children.
Simply put, not only do amicus have a direct and vital interest in the specific statute before the Court, but additionally have a longstanding interest in safe-guarding the mental well-being of children.
SUMMARY OF ARGUMENT
By any measure, California has a compelling inter-est in protecting the physical and psychological care of minors. When juxtaposed against the backdrop of protecting the First Amendment, this Court has held that the Constitution does not confer the protection on communication aimed at children as it does for adults. When weighing the conflicting concerns of minors this Court correctly carved a flexible standard of review and not a strict scrutiny approach. We know, of course, that a state can prohibit the sale
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of sexually-explicit material to minors under a “varia-ble obscenity” or “obscenity as to minors” standard. Ginsberg v. New York, 390 U.S. 629 (1968). Just as it was rational for the State to conclude that that type of material was harmful to minors, the restrictions to assist parents in protecting their children’s well-being is, in a practical sense, no different than the concerns supporting California’s enactment of Cali-fornia Civil Code Sections 1746 – 1746.5.
Indeed, restricting the sale and rental of extremely violent interactive videos to minors advances the very same societal interests understood in Ginsberg. Con-trary to the Ninth Circuit’s decision not to step beyond the perception that Ginsberg was meant ex-clusively to apply to sexually explicit materials and not to equally harmful materials depicting violence, the Court should grant certiorari to address what clearly is a question of first impression. Video Soft-ware Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).
Needless to say, the world is much different today than it was in 1968 when Ginsberg was decided. What has remained for the past 40 years, however, is the understanding that the First Amendment does not protect harmful materials to minors.
In 2006, a Federal Trade Commission study re-vealed that nearly 70 percent of 13 to 16 year olds are able to successfully purchase Mature or M-rated video games. These M-rated games, labeled by the indus-try as such in an attempt to “police” the distribution of harmful videos, are designed specifically for adults. The content in these type of games enable the user to murder, burn, and maim law enforcement officers, racial minorities, members of clergy as well as sex-ually assault women.
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In his March 29, 2006 testimony submitted to the Subcommittee on the Constitution, Civil Rights, and Property Rights of the United States Senate Judi-ciary Committee, Senator Yee noted that the interac-tive nature of video games is vastly different than passively listening to music, watching a movie, or reading a book. With interactive video games, the child becomes a part of the action which serves as a potent agent to facilitate violence and overtime learns the destructive behavior. This immersion results in a more powerful experience and potentially dangerous learned behavior in children and youth. In fact, often times it is the same technology that our military and police use to simulate and train for real life battle conditions and violent law enforcement confrontations in the community.
Moreover, there is a practical side in favor of the State’s effort to regulate the sale or rental of violent video games to children. Parents can read a book, watch a movie or listen to a CD to discern if it is appropriate for their child. These violent video games, on the other hand, can contain up to 800 hours of footage with the most atrocious content often reserved for the highest levels and can be accessed only by advanced players after hours upon hours of progressive mastery.
Just as the technology of video games improves at astonishing rates, so to does the body of research consistently demonstrate the harmful effects these violent interactive games have on minors. Over three thousand peer-reviewed studies, produced over a period of 30 years documenting the effects of screen violence (including violent video games), have now been published in the professional journals of the American Academy of Pediatrics, American Academy
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of Child and Adolescent Psychiatry, American Psy-chological Association, American Medical Association, American Academy of Family Physicians, and the American Psychiatric Association and others.
These data suggest very strongly that participating in the playing of violent video games by children and youth increase aggressive thought and behavior; in-crease antisocial behavior and delinquency; engender poor school performance; desensitize the game player to violence; and reduced activity in the frontal lobes of the brain.
Notably, extended play has been observed to de-press activity in the frontal cortex of the brain which controls executive thought and function, produces intentionality and the ability to plan sequences of action, and is the seat of self-reflection, discipline and self-control.
The United States Surgeon General has also warned of a demonstrated link between screen violence and subsequent physical aggression in children and ado-lescents that is stronger than the link between second hand smoke and cancer.
Finally, new data shows that the intensity of inter-active video games may be habituating and that 2-3 hour sessions of intense interactions with video games raise adrenaline levels in children and produces ex-tended physiological arousal. In the medical com-munity concern has been raised at prolonged and regularly repeated states of adrenalized arousal and hyper-vigilance involved in children watching violent video games and the possible harmful effects on still developing bodies and brains.
As a society, we understand the clear commonsense reasons to prohibit the sale of alcohol, tobacco, fire-
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arms, driver’s licenses and pornography to minors. That same common sense approach applies in the foundation and enactment of California Civil Code Sections 1746 – 1746.5. Given that the First Amend-ment does not protect the State’s restriction on the sale or rental of harmful violent video games to minors, the Court should grant certiorari and uphold the statutory safeguards necessary in this modern day world.
ARGUMENT
Numerous reasons support granting the Petition for Certiorari in order to confirm that the free speech protections of the First Amendment are not violated when States properly restrict the sale and rental of violent video games to minors. Indeed, although there are no clear conflicts among the circuit courts on this issue, other guidelines employed by this Court warrant granting certiorari.
For example, in exercising its discretion whether to grant certiorari, Rule 10 of the Supreme Court Rules instructs that the Court’s jurisdiction will be granted for compelling reasons. The nation’s interest in the health of its children, along with this admittedly significant constitutional question, easily qualifies the issues in this case as compelling.
Additionally, while there have been several court decisions striking down legislation similar to the state statute in this case, there currently exist active or proposed legislation enacting varying degrees of re-striction on violent video games in other States. Specifically, the Legislative Tracker webpage at http:// www.GamePolitics.com lists the numerous pieces of local, state and federal legislation that exist which address in some fashion the growing concern sur-
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rounding violent video games. For example, accord-ing to Legislative Tracker, Massachusetts, New York, Utah, Pennsylvania, Maryland, Georgia, as well the House of Representatives with the Video Game Health Labeling Act of 2009 all have active or proposed legislation addressing in some manner society’s concerns with a minor’s access to violent video games. http://www.GamePolitics.com
In other words, one part of the country may restrict what is otherwise unfettered in an other part of the country. Coupled with this practical “conflict” appli-cation of law, the increasing number of state and possible federal laws proscribing a minor’s access to violent video games makes this percolating issue, if not already, an issue to be eventually taken up by the Court.
Moreover, the identified factors in Rule 10, while not fully measuring the character of the reasons for this Court’s granting certiorari, include a scenario where a United States Court of Appeals has decided important questions of federal law contrary to this Court’s relevant decisions. The appellate court’s misapplication of the strict scrutiny test as well as its reluctance to correctly apply this Court’s reasoning seen in Ginsberg further warrants certiorari in this case.
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I. THIS COURT HAS ACKNOWLEDGED SOCIETY’S RATIONAL AND COMPEL-LING INTEREST IN DISTINGUISHING AND LIMITING THE RIGHTS ENJOYED BY MINORS.
The courts have long agreed that there is an over-riding justification in protecting children from con-duct pervasive in society. Without questions, re-stricting a minor’s access to gambling, smoking and alcohol serve the community’s interest in both pro-tecting a minor’s development as well as safeguarding against the individual and widespread collateral con-sequences which flow from a minor’s early addiction to these vices.
As a general proposition, many constitutional rights vary in the degree to which the exercise of the right by minors is protected from government abridg-ment. For example, minors do not have the right to exercise the franchise. Similarly, a minor’s right to have an abortion may be subject to regulations that would be rejected as unduly burdensome if they were applied to adult women. Thus, there is a recognized foundation for distinguishing between minors and adults in analyzing the constitutionality of regula-tions.
This foundation comports with the common sense intuition that, because children lack maturity to make wise judgments, their autonomy deserves less respect from the state than does the autonomy of adults. While paternalistic state regulations are cor-rectly viewed as demeaning when applied to adults, there are considered appropriate, if not necessary, for children.
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In Ginsberg, of course, this Court concluded that the state had greater authority to limit the exercise of protected freedoms because children were involved and, in relying on its precedents, recognized that “the State has an interest ‘to protect the welfare of children’ and to see that they are ‘safeguarded from abuses’ which might prevent their ‘growth into free and independent well-developed men and citizens.’”
As it relates to expressive materials, there is no language from this Court suggesting that the state’s interest in protecting minors from such material is limited to speech with sexual content. In Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) a case concerning restrictions on films depicting nudity from being shown in drive-in movies, the Court was unwilling to protect minors from brief exposure to such images.
However, the alleged harm caused by the minimal exposure to nude images a child passing by a drive-in theater might witness cannot realistically be com-pared to harm resulting from repeated and long term exposure to violent video games. In fact, in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), this Court supported an FCC determination that the radio broad-cast of a George Carlin monologue containing “filthy words” could be restricted precisely because it was accessible to young children.
Children, this Court has acknowledged, are differ-ent in the eyes of the law because of brain develop-ment. Ropers v. Simmons, 543 U.S. 551 (2005). Under the “evolving standards of decency” test, the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder. Writing for the majority, Justice Kennedy cited a body of sociological and
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scientific research that found that juveniles have a lack of maturity and sense of responsibility compared to adults. Adolescents were found to be over-represented statistically in virtually every category of reckless behavior.
In Ropers, the Court noted that in recognition of the comparative immaturity and irresponsibility of juveniles, almost every state prohibited those under age 18 from voting, serving on juries, or marrying without parental consent. The studies also found that juveniles are also more vulnerable to negative influences and outside pressures, including peer pres-sure. They have less control, or experience with control, over their own environment. This unequi-vocal commonsense approach by the Court to con-stitutional matters and children should be likewise applied in addressing the deepening dangers to minors from violent video games.
In sum, “[A] state or municipality can adopt more stringent controls on communicative materials avail-able to youths than on those available to adults.” Erznoznik, at 212. Here, California’s control on the sale or rental of violent video games to minors fall within the permissible advancement of a significant, if not compelling, public interest in protecting the development and mental health of minors.
II. VIOLENT VIDEO GAMES ARE HARMFUL TO MINORS ALLOWING THE STATE CLEAR JUSTIFICATION IN REGULAT-ING CHILDREN’S ACCESS TO THESE TO MATERIALS.
There have been thousands of studies in the area of the effects of violent video games on children. Craig A. Anderson, Ph.D., Director, Center for the Study of
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Violence, Department of Psychology at Iowa State University has been a leader in this area of study. On his website, Dr. Anderson describes the results of his studies and research. See http://www.Craig Anderson.org
In researching the association between media vi-olence and aggressive behavior, Dr. Anderson, along with others, has determined that there is a signifi-cant relation between exposure to media violence and aggressive behavior. He believes that “Exposing children and adolescents (or “youth”) to violent visual media increases the likelihood that they will engage in physical aggression against another person. “By “physical aggression” we mean behavior that is in-tended to harm another person physically, such as hitting with a fist or some object. A single brief exposure to violent media can increase aggression in the immediate situation. Repeated exposure leads to general increases in aggressiveness over time. This relation between media violence and aggressive beha-vior is causal.”
Moreover, Dr. Anderson concluded, repeated con-sumption of media violence over time increases ag-gression across a range of situations and across time because of several related factors:
1. It creates more positive attitudes, beliefs, and expectations regarding aggressive solutions to interpersonal problems. In other words, youth come to believe that aggression is normal, appro-priate, and likely to succeed.
2. It also leads to the development of aggressive scripts, which are basically ways of thinking about how the social world works. Heavy media
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violence consumers tend to view the world in a more hostile fashion.
3. It decreases the cognitive accessibility of non-violent ways to handle conflict. That is, it be-comes harder to even think about nonviolent solutions.
4. It produces an emotional desensitization to aggression and violence. Normally, people have a negative emotional reaction to conflict, aggres-sion, and violence, and this can be seen in their physiological reactions to observation of violence (real or fictional, as in entertainment media). For example, viewing physical violence normally leads to increases in heart rate and blood pres-sure, as well as to certain brain wave patterns. Such normal negative emotional reactions tend to inhibit aggressive behavior, and can inspire helping behavior. Repeated consumption of media violence reduces these normal negative emotional reactions.
5. Repetition increases learning of any type of skill or way of thinking, to the point where that skill or way of thinking becomes fairly automatic. Repetition effects including learning how to aggress.
In his March 21, 2000 testimony before the United States Commerce Committee hearing on the “The Impact of Interactive Violence on Children,” Pro-fessor Anderson at the outset stated what his extensive research revealed:
“Though there are many complexities in this realm of behavioral research, there is one clear and simple message that parents, educators, and public policy makers such as yourselves need to
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hear: Playing violent video games can cause increases in aggression and violence.”
Repeatedly thinking about violent characters, choos-ing to be aggressive, enacting that aggressive choice, and being rewarded for it can be conceived as a series of learning trials influencing a variety of types of aggressive knowledge structures. “Violent Video Games: Specific Effects of Violent Content on Aggres-sive Thoughts and Behavior,” Advances in Experi-mental Social Psychology, Vol. 36 (2004).
The American Academy of Pediatrics also, with nu-merous others, concludes that exposure to violence in media, including violent video games, can contribute to aggressive behavior, desensitization to violence, nightmares and fear of being harmed. “Media Vi-olence,” American Academy of Pediatrics, Volume 108, Number 5, (November 2001). The study by the American Academy of Pediatrics found that Ameri-can children between 2 and 18 years of age spend an average of 6 hours and 32 minutes each day using media, including video games.
Predicated on years of studies and research, the American Psychological Association formally recog-nized the serious negative impact of violent video games on this nation’s children and passed its Res-olution “On Violence in Video Games and Interactive Media.” This prestigious association of experts con-cluded not only that there are long term negative effects on children in playing these violent video games, but that the industry, the public, parents, caregivers and educational organizations had a re-sponsibility to intercede in this epidemic. The Cali-fornia statute authored by Senator Yee and enacted into law was a response to that call for assistance
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given our children’s unfettered access to violent video games.
In the end, commonsense tells us what this moun-tain of research reveals. Society has a direct, rational and compelling reason in restricting a minor’s access to violent video games. This Court has never directly dealt with this precise issue, but its precedent in protecting children clearly leads one to believe that the Court will agree and reverse the lower court thereby upholding California’s statute.
CONCLUSION
The Petition for Certiorari should be granted.
July 22, 2009
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