Target real violence, not video games

We live in a society saturated with real-life violence - violence that is difficult to legislate away. So it is sadly not surprising when legislators attack fictional and fantasy images of violence portrayed in media products instead of dealing with actual crime.

Last week, Illinois Gov. Rod Blagojevich signed into law a bill that limits the sale of graphically violent video games to minors. Specifically, it is now illegal for anyone in the state to sell or rent a "violent" video game to anyone under the age of 18.

At first blush, measures such as the one signed by the governor appear to protect the state's children - admittedly a noble effort.

Games like "Grand Theft Auto: San Andreas" clearly are offensive and any reasonable parent would not let his or her child play the game.

But the new Illinois law and a similar federal measure proposed last week by Sen. Hillary Rodham Clinton (D) of New York amount to little more than flawed attempts by lawmakers to create a false sense of protection and security at the expense of the constitutional rights of the creators, manufacturers, and users of video games for entertainment purposes - and ultimately at the expense of the state's taxpayers.

What is even more troubling is that legislators have enacted this measure despite clear precedent that such bills violate settled constitutional law.

In fact, every law restricting violent video games has met with the same fate: a federal court striking it down as unconstitutional.

As Judge Richard Posner of the Seventh Circuit United States Court of Appeals in Chicago - the federal appellate court covering Illinois - made clear in a case striking down an Indianapolis ordinance restricting minors' access to video games, the interactive nature of games does not make them any less deserving of First Amendment protection than other forms of media such as books and movies.

Writing in American Amusement Machine Association v. Kendrick, Judge Posner observed that "[a]ll literature (here broadly defined to include movies, television and other photographic media and popular as well as highbrow literature) is interactive; the better it is, the more interactive."

Legislators fully recognize they would face certain peril if they tried to ban books, movies, or TV programs, so instead they take on a new technology and try to convince their constituents that graphic depictions of violence in an interactive format somehow make it more harmful to minors.

The flaw in that reasoning is that no one has ever been able to prove through independent research that video games are harmful to children or to show that they cause violence.

There have been some contrived laboratory experiments that purport to show a correlation between viewing video games and increased aggression in some people, but aggression is not the same thing as violence, and correlation does not equal causation.

In order for any law to restrict the First Amendment rights of citizens in this country, by barring certain content, the government must demonstrate a compelling interest. Provable harm to children would probably satisfy that burden, but no such evidence exists, and that's one reason measures like the one signed by Governor Blagojevich fail when challenged in court.

Gang members don't commit drive-by shootings simply because they played a video game, nor do school kids shoot others simply because they played a video game.

The factors influencing such violent acts are far more complex than that. Hundreds of thousands of kids who play video games, the vast majority of which do not portray violence, will never assault, attack, or otherwise harm anyone.

Federal courts in St. Louis and in the state of Washington have adopted Judge Posner's reasoning in striking down similar laws in those jurisdictions.

Blagojevich and the Illinois legislature share the responsibility for enacting measures that violate the Constitution, but the citizens of Illinois will share the expense of defending these invalid measures as inevitable court challenges move forward.

• Robert D. Richards and Clay Calvert are professors of communications and law at Pennsylvania State University and codirectors of the Pennsylvania Center for the First Amendment.