Scott Forsyth, The Daily Record Newswire
Two more shooting deaths, this time of first responders. Again, what a tragedy. We ask ourselves — why? Some folks think they know the answer. It is the media.
Allegedly persons who view depictions of violence in the media are more likely to act violently in the real world. Specially vulnerable are children and specially evil are video games.
The critics want the media to censor themselves more or for government to be the censor. These actions may satisfy our desire for solutions, but they are built on false premises and run afoul of the First Amendment.
Before I explain, let me repeat: What happened in Newtown and Webster and the killings which happen all too frequently on the streets of urban centers are horrible. But, to paraphrase a lesson learned in law school, bad facts can lead to bad law.
For starters, without a mind-reading device, it’s virtually impossible to identify a causal link between exposure to media and any kind of action in the real world. Some psychologists purport to find a causal link and some do not. At best there is evidence of a correlation between viewing violence and acting aggressively. And correlation, as everybody should know, is not causation.
Second, everybody views depictions of violence in the media and some people view lots of depictions. Still many of us lead peaceful lives and many within the subclass of frequent viewers of media violence do not commit violent acts.
The science aside, any government plan to restrict access to depictions of violence by the media buts heads with the First Amendment.
Eighteen months ago the Supreme Court struck down a California statute that prohibited the sale or rental of “violent video games” to minors, Brown v. Entertainment Merchants Assn., 564 U.S. ___ (2011).
The statute targeted games wherein a player has the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” The statute tracked obscenity laws, exempting games having a “serious literary, artistic, political, or scientific value for minors.”
Justice Scalia wrote the opinion. He made much of the fact video games are not uniquely violent. He reminded us “Grimm’s Fairy Tales,” the “Odyssey,” the “Inferno,” and notably the “Lord of the Flies” are brutal classics.
We do not have a tradition of restricting children’s access to depictions of violence, he noted. Just the opposite. We hold “basic” the principle that government lacks “the power to restrict expression because of its message, its subject matter, or its content,” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). There are a few limited exceptions, such as obscenity, incitement, fighting words and child pornography, none of which applied.
A legislature cannot create new exceptions for speech it deems too harmful to tolerate. Nor can a legislature suppress otherwise protected speech by borrowing language from an exception. Justice Scalia then gave the statute the kiss of death by analyzing it under strict scrutiny.
Twelve months earlier the Supreme Court invalidated a federal law that criminalized the creation, possession and sale of depictions of animal cruelty or “crush videos,” United States v. Stevens, 559 U.S. __ (2010). The law restricted speech based on its content and did not fall into any of the exceptions. The court emphasized we do not have any tradition of forbidding the depiction of animal cruelty, though states have long had laws against committing animal cruelty.
If government cannot regulate the sale of violent video games to minors and the possession of crush videos, it cannot regulate general depictions of violence, no matter how distasteful the depictions may be.
It may seem counterintuitive but what a person views does not necessarily cause him to act violently. Let us not blame the media, because doing so leads to talk of censorship, a truly false solution.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
