I Know It When I See It

It is easy to imagine the scene.  Les Amants was French director Louis Malle’s third film and had been tremendously popular in France and other European countries.  Many considered the film to be what established him as a serious talent.  So when the film was shown in the Coventry Village district of Cleveland Heights in Ohio in 1959, it probably attracted those people in the community who had an interest in seeing the works of foreign talents.  One can imagine men and women lining up at the Heights Art Theatre in this bohemian part of Ohio, perhaps pulling their coats tight around them on the cool autumn evening as they waited.  Surely the film was not as popular in sleepy Ohio as in the more cosmopolitan American cities of New York or San Francisco, but every part of the country has an element interested in such things.  Most waiting to view the film probably considered themselves to be reasonably sophisticated and looking forward to debates over late-night coffee about the merits and failings of Malle’s vision. 

There was just one problem.  The local government considered the film — which recounts the story of an unhappy upper-class woman who spurns both her husband and her lover for the uncertain excitement promised by a passing stranger — obscene.  The manager of the theater, Nico Jacobellis, was fined a total of $2500 for violating Ohio law by possessing and exhibiting an obscene film.  It is likely that few today would be in any way shocked by the film’s content, but it was Jacobellis’s conviction that resulted in Justice Potter Stewart’s famous proclamation about obscenity that “I know it when I see it, and the motion picture involved in this case is not it.” 

The contours of the guarantee in the U.S. Bill of Rights that “Congress shall make no law … abridging the freedom of speech” is one that the Supreme Court frequently struggles with.  Yesterday, the Court heard oral arguments in the case of Schwarzenegger v. Entertainment Merchants Assoc.  A transcript of the arguments can be found here. 

At issue in the case is a California law that prohibits the sale or renting of violent video games to children.  The definition of “violent video game” is reasonably specific in the statute, and this is relevant.  The statute seeks to regulate video games in which children play characters that “inflict serious injury … in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim,” with such terms being further defined to include that the “player relishes the virtual killing or shows indifference to the suffering of the victim.” 

No matter how strongly one feels about the right to free expression, including the right to expression that involves violent images, it is impossible not to recognize the concern of the legislature in wanting to regulate these types of games.  There are numerous studies that have been conducted by social scientists and medical associations that raise specific concerns with video games that go beyond what a viewer of a film or reader of a book experiences.  Books and films provide passive experiences.  But video games allow the child to “become” the character in the game inflicting the violence, and those studies have found a correlation between playing such games that influences the moral development of young people at an age when their senses of morality and sociability are not fully formed.  They have an increase in aggressive thoughts and behavior and become desensitized to violence in both minors and adults. 

This science has been criticized, and those criticisms need to be taken into account in a full exploration of the issues.  But for my purposes today, suppose that the science relied on by the state is accurate.  Does that science then justify this encumbrance on the First Amendment rights to expression?  It is not an easy decision.  As Justice Scalia amusingly noted during yesterday’s argument, the First Amendment does not read “Congress shall make no law abridging the freedom of speech except those that make sense.” 

There are many considerations that the Court needs to make sense of, but two of them stand out in particular.  First, how is the producer of a video game to know whether what is produced is a “deviant violent video game” as opposed to a “normal violent video game”?  Everyone agrees that some level of violence has always been accepted in artistic expression, with examples ranging from Grimm’s fairy tales to the Bible to cartoons being mentioned during the argument.  Such uses can be a powerful part of legitimate messages that are conveyed in artistic creations, and it clearly goes too far to prohibit all violence from any artistic expression, including video games.  It is reasonable to expect producers to know what crosses the line and what does not, particularly when every one of us has a different view as to when a certain level of violence becomes too much.  Justice Scalia incisively mocked the notion that the state should have a mechanism to examine each video game and decide, using language that makes us cringe and shudder:  “You should consider creating such a one.  You might call it the California Office of Censorship.” 

Second, should the law accept a different treatment for sex and violence?  One of the strongest arguments made in favor of California’s law is that it attempts to mirror the standards that have been set forth by the Supreme Court itself in regulating sexual expression.  Obscenity can be regulated in the United States, the Court having set forth a test decades ago to delineate when sexual expression crosses the line into unprotected obscenity.  The only justification the Court seems to offer is that sexual expression has a “historical tradition” of being regulated while violence does not. 

This is a difficult rationalization to accept.  And if anything, it appears to provide a result that many feel is backwards.  If there is scientific evidence that violent video games may hamper a child’s social development and make him less empathetic to the suffering of others, how does it make sense to allow such expression while regulating sexual expression just because one type of suppression is “traditional” and the other is not. 

It is very often the case that things that seemed scandalous years ago seem tame today, particularly when new types of expression are implicated.  Print images caused concerns centuries ago.  Motion pictures caused concerns decades ago.  Video games cause concerns today.  And something else will cause concerns in the future.  Each of these has been identified as being more “real” and therefore more likely to impact the way children develop, prompting calls for the government to intervene.  Anyone watching Les Amants today, with a modern sensibility, is likely to consider it almost prosaic in its themes and portrayals. 

In the end, perhaps Justice Stewart’s observation is even more profound than he intended.  Times change.  Morals change.  Technologies change.  But I still know it when I see it.