In the wake of the Sandy Hook Elementary tragedy, Congress has turned its attention to gun control. Where gun violence is involved, we have seen a scramble to pinpoint the exact cause of such tragedies. Like in the cases of Columbine and the Virginia Tech shootings, violent video games have also come under scrutiny by both sides of the aisle as a contributing cause, along with easy access to guns and mental health, in what causes such tragedy. Those who oppose further gun control, like the National Rifle Association, have argued that video games are the sole factor, rather than a contributing factor, to bolster their stance on guns and shift the blame to violent media.

Senator Lamar Alexander (R-TN) has stated, “Video games [are] a bigger problem than guns.” This was his response when asked about his support of universal background checks (in regard to guns) in an interview on MSNBC. Senator Alexander’s rationale: “because video games affect people.” This rationale has yet to be proven. In fact, more research has been proposed in order to find a connection between video games and its “effect on people.”

Recently, the Obama administration proposed an allocation of $10 million dollars to fund additional studies on violent media, mainly video games. If a connection were found to link violent media to violent behaviors, would this provide enough motive for Congress to pass a statute regulating the content of video games, thus stifling the creativity of video game creators? Regulation could stifle creativity because it would be a wasted effort to create a game that will not pass under the regulation. So, rather than waste effort in creating a game, it would become easier not to create a game at all. Past studies have sought to forge a connection between violent media and violent behavior. Thus far, studies have yet to show a conclusive connection between the two; at best, the results are conflicting.

Therefore, proposing to restrict the content of video games with the goal of preventing violence becomes a bigger problem in and of itself because it would infringe on the creators’ First Amendment right of freedom of speech and expression.

As a freedom of speech issue, video games are protected by the First Amendment as held in Brown v. Entertainment Merchants Ass’n, 131 S.Ct.2729, 180 L.Ed.2d 708 [2011]. The court reasoned in Brown: “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic [sic] and moral judgments about art and literature … are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” Under this ruling, one who creates a video game is free to express as much violence as he would like to convey an idea or message. It would be unconstitutional to restrict production of such games due to their content.

In Brown, the Court ruled against a California bill that attempted to restrict sale or rental of violent video games to minors based on their own definition of “violent video game.” The bill defined a violent video game “as a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.” The bill based its restriction on the content produced, therefore impinging on video game creators’ First Amendment right to free speech and expression. To pass this bill would create a broad definition of what would be considered a violent video game and would ban an entire sector of speech from being expressed in the medium of video games.

The case states that the Court has “long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.” Therefore, I believe the Court should not attempt to distinguish politics from entertainment without a concrete connection between video game violence and violent behavior.

With an ongoing outcry against violence in video games, the video game industry took regulatory steps to protect its consumers through the Entertainment Software Rating Board (ESRB).  The ESRB provides ratings for video games in order to provide “consumers…with guidance that allow[s] them to make informed decisions about the age-appropriateness and suitability of video games.” These ratings allow adult consumers to decide the type of content they play and allow parents to decide what content their children are exposed to.

An example of how the ESRB’s ratings are used in a regulatory way without infringing on First Amendment guarantees is apparent in the 2009 legislation passed in New York. New York has passed legislation to have the ESRB’s ratings visibly posted on video games and have prohibited the sale of games with mature content to minors. Unlike the California bill in Brown, this law comports with the reasoning in Brown, by allowing the content of a video game – however violent – to be available for purchase, but it also regulates who is able to receive such content to prevent a possible influence of violence. This is a great balance between the two competing views in this area: freedom of speech and expression for those who produce video game content and those who are concerned about violence and want to ensure safety in all mediums. The focus on the consumer allows for the exercise of freedom of speech and expression, where the focus on the content infringes on those freedoms

Any further restriction upon video game content would be unfounded and unconstitutional considering the lack of conclusive evidence between violent media and violent behavior and the reasoning in Brown. Thus, the state of the video game industry should remain unchanged until further studies have indisputably bridged violent media to violent behavior.

Unsupported statements, like the one made by Senator Alexander, make the video game industry a scapegoat to what real issues lay behind a tragedy such as the one at Sandy Hook. The more important question is, “Where should the liability lie?” From my point of view, the liability is shared among many industries and not just a single industry. Instead of pointing to a single industry as a scapegoat, all contributing factors (violent media, gun control, mental health, etc…) should be considered when making regulatory decisions, especially when the decision will ultimately curb an industry’s First Amendment rights and impose strict regulations that would have further consequences outside of its intended goal.