Trump may want to regulate violent games, but can he?

In the wake of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, President Trump announced a video game summit to address the link between video game violence and real world violence (despite there being no evidence of any such link). Trump called for the summit after he heard from people that violent video games were shaping young people's minds. It seems likely Trump will try to pin at least some of the blame for school shootings on video game violence--it's a political win that reinforces existing views of some of the more conservative members of his party and keeps him from having to tangle with the NRA and his pro-gun base on firearms restrictions. But how likely are any Trump regulations to hold up?

This is a good time to revisit the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Association. That case dealt with a California law prohibiting sale of "violent video games" to minors. The law also required such games to be labeled age 18 and up. The late Justice Antonin Scalia, one of the court's most conservative members at the time, wrote the opinion of the majority, striking down the California law. Only Justices Thomas and Breyer dissented.

The court began by affirming video games are protected under the First Amendment. In the words of the court, "Like protected books, plays, and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices....That suffices to confer First Amendment protection."

To be fair, California never argued video games were completely outside the realm of First Amendment protection. Instead, the state argued that it had the ability to regulate the speech nonetheless because the speech was aimed at children. The court made short work of this argument, noting that minors are entitled to a "significant measure" of First Amendment protection, and the government can only prevent protected materials from being directed toward them in narrow and well-defined circumstances. If the speech is not obscene as to youths, or subject to some other legitimate restriction, the state cannot suppress the speech.

The court got it right in Brown, of course. The First Amendment protects violent speech. It protects hate speech. It protects many categories of speech that any given person reading this blog may not like.

So, what can President Trump do?

He can work with Congress (a tall order in and of itself) to pass regulations on violent video games, and then he can watch as the regulations are struck down by the courts.

Given the First Amendment protections enjoyed by video games, any regulation by the government has to pass "strict scrutiny." That means it has to address a compelling government interest, and has to be narrowly tailored to serve that interest. Video game regulations have a problem on the first count. Given that scientific research shows no link between video games and violent behavior, the government will be hard-pressed to argue that regulating them serves a compelling interest. Certainly, the interest in preventing violence is compelling, but science tells us regulating video game bears no relation to that interest. Thus, even if the government could come up with a narrowly crafted regulation (something the government is not particularly good at), regulation of violent video games is not likely to pass Constitutional muster.

That is as it should be. As the court said in one of its earlier decisions, U.S. v. Playboy Entertainment Group, "[i]t is rare that a regulation restricting speech because of its content will ever be permissible."