Censorship of video games wrongheaded

Illinois Gov. Rod Blagojevich's call for state laws to crack down on the sale and distribution of video games depicting violence and sex to minors and to force retailers to label such games should come as no surprise.

The conditions were prime for a "perfect storm" for censorship.

First, there was the holiday season with parents busily shopping for toys for their children. Then, thrown into the middle of the season was the release of an uber-violent video game called "JFK Reloaded" that allows a player to take on the role of Lee Harvey Oswald in Dallas on Nov. 22, 1963, and fire off shots at the passing motorcade of President John F. Kennedy.

Tossed into this already combustible mix are reports released last month criticizing video games by groups with such save-us-please names as Mothers Against Violence in America and the National Institute on Media and the Family.

And then, of course, there are the parent-pandering politicians seeking to redeem American culture from the throes of violence that grip it. Fictional and fantasy violence, that is, not the kind where real lives are lost on battlefields thousands of miles away.

It's a perfect climate in which 1st Amendment interests of free speech are ready to be sacrificed at the altar of good press and the feel-good spirit of the season.

Blagojevich said he was outraged by JFK Reloaded, and singled out another recent video game release, Grand Theft Auto: San Andreas for his wrath.

Blagojevich, of course, is not alone among Illinois politicians. In fact, he is jumping on the bandwagon. Earlier this month, Chicago Ald. Edward Burke (14th) and Ald. Isaac Carothers (29th) introduced legislation in the City Council designed to restrict minors' access to video games depicting violence.

All of this angst and outrage may be well-intentioned, but it certainly gives short shrift to freedom of expression and the reality that legal precedent weighs strongly against the constitutionality of measures restricting the sale of violence.

It was Judge Richard A. Posner of Chicago and the 7th Circuit U.S. Court of Appeals who wrote a unanimous opinion for that court in 2001 striking down on 1st Amendment grounds an Indianapolis ordinance that similarly sought to limit the access of minors to video games that depict violence.

Posner wrote in that case, American Amusement Machine Association vs. Kendrick, that it is not just video gamemakers, retailers and distributors who have free-speech interests at stake. Posner observed that "children have 1st Amendment rights," adding that "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."

Since that time, another federal appellate court has struck down a St. Louis County, Mo., law restricting the access of children to video games depicting violence. And in July of 2004, a federal judge in Washington state declared unconstitutional a state law that prevented minors from obtaining video games containing "realistic or photographic-like depictions of aggressive conflict in which the player kills, injures or otherwise causes physical harm to a human form in the game who is depicted ... as a public law enforcement officer."

In stark contrast with the decisions in Indianapolis, St. Louis County and Washington state, there is no judicial precedent that supports access-restricting measures like those proposed by Blagojevich.

But that lack of precedent and case law probably won't stop the proposed legislation from becoming law; what politician, after all, wants to be known as the one who supports graphic images of violence?

In the end, however, taxpayers will pay the cost of unsuccessfully defending such laws when they are inevitably challenged in court. It will then be a perfect storm for lawmakers to blast judges who uphold the constitutional protection of free speech.