Sex or violence—Which is more harmful to children?

Serious warning: this post contains images and descriptions of graphic video-game violence. The intended audience for this post is adults.


The U.S. Supreme Court ruled last week, in a 7-of-9 majority, that the State of California may not prohibit the sale of violent video games to minors. Such a ban, the majority argued, restricts the free speech rights of the video-game manufacturers, and is therefore unconstitutional. Read the ruling here.

Let me do a thought experiment with you. Suppose you have a child—a young boy, aged 13.  He’s just been given his weekly allowance for helping out with the chores. Now you’re given a choice. You may allow him to do one of the following two things with his hard-earned cash:

Option #1. Purchase a magazine containing images of nude models.

Option #2. Purchase a video game in which he role-plays a sadistic protagonist, torturing a female victim while she screams in agony. Then he rapes her, urinates on her, douses her in gasoline, and sets her on fire. In another level he can recruit the help of a virtual buddy to inflict the torture. For example, the players can grasp a woman by her legs—one leg each—and then literally tear her apart. This is accomplished by pulling the legs in opposite directions, so that your child and the co-torturer rip the woman in half starting at her groin. As she writhes and sobs—as pints of blood explode out of her, and as her organs fall to the floor—the tearing continues: it goes up along the spine through her stomach, splitting her ribs at the torso, and finally reaching her head: the skull cracks, and her very face splits in two. Level over.

[The above images are taken from Mortal Kombat. For a video of this torture and murder (with commentary by Jon Stewart) see here. If you think this is a “fringe” game played by a soulless sub-population of gamers, think again: it’s among the most popular and successful fighting games ever released, described by the New York Daily News as a  “worldwide hit.”]

Which would you choose?

In the U.S., I’m sorry to tell you, you do not have the first option. That is, you may not allow your child to purchase the magazine, because it is legally considered obscene. Hence any shop-owner who took your child’s money, in exchange for the image of a woman with her breast exposed, would be breaking the law. You could buy the magazine yourself, of course, and give it to your child. But the law requires that an adult is the one who makes the decision to purchase.

You do have the second option, however—thanks to the ruling cited above. In fact, not only may you allow your child to purchase the video game, but your child can actually elect to purchase the video game all by himself—whether you wish him to or not. This is key. He may go to a video game store, at any time, with or without your knowledge or consent, and exchange his allowance for the game. He can take it to a friend’s house, put it in the console, and spend hours raping, torturing, and murdering his victims, virtually. You would never have to know.

The State of California decided to legislate against this outcome. There is some straightforward reasoning involved. As it stands, a legislative body is constitutionally allowed to decide that certain media—say, Playboy magazines—are so harmful to minors and young children that they can impose a categorical ban on their sale to anyone under the age of 18. I’m not certain, myself, of the precise type (or degree) of harm that depictions of nudity could cause a 17 year old, or even a 13 year old, as in the scenario I gave above. Maybe such depictions are harmful; maybe they are not. However, I am certain of the following. If it is harmful to view an image like the one I provided in Option #1, then it is a thousand times more harmful, not only to view, but to actively participate in the virtual activities depicted in, the images I showed in Option #2.

If a breast in a magazine is not “protected free speech,” then by what principle or reasoning is Mortal Kombat?

Here is the text of the First Amendment to the U.S. Constitution—the one that gives a broad right to freedom of speech:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

… Hold on, how exactly does this clause have anything to do with violent video games? You’d be right to wonder. Roughly, the argument goes like this. The line between “speech,” “expression,” “media,” and “entertainment” is a blurry one indeed. One person’s entertainment is another’s propaganda. So “speech” must be taken to include all manner of media, art, and means of communication. Everything from books, to songs, to plays, to movies—and video games as well.

But not all speech is free. There are certain forms of speech that aren’t protected, and therefore can be regulated or banned by legislatures. These include (falsely) shouting “fire” in a crowded theater, obscenity, incitement to violence, and fighting words. The one I want to focus on is “obscenity.”

In U.S. Constitutional law, “obscenity” has a very narrow meaning. It doesn’t apply to just anything a community or a legislature may find offensive or morally corrupting. It applies to sex—and to nudity—only. But why is there a special “loophole” for banning depictions of breasts, when there is no equivalent exception for lifelike depictions of rape, torture, and murder?

Historians can fill me in, but my guess is that it has more to do with America’s puritanical past than with any careful analysis of relevant data—that is, data concerning what sorts of things actually cause harm to vulnerable minors.

But the data are, ultimately, irrelevant to my argument. This is a good thing for the case I’m trying to make, because there is quite a bit of academic debate about the real-world causal effects of violent video-gaming on aggression, harm, and so on. My point is only this. Whatever possible harm is sufficient to justify the prohibition of selling a Playboy to a child, cannot in a million years be less than the harm caused by violent video games. If Playboy harm is sufficiently bad, Mortal Kombat harm is sufficiently bad, too—and then a whole lot more.

At least one Supreme Court Justice seemed to notice this absurdity in the logic of the ruling. Here’s how Steven Breyer put it in his separate, dissenting opinion:

What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? … What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured and killed — is also topless?

I’m with Breyer. And I’ll make his point even clearer. Scroll up and take another look at those images from Mortal Kombat. These cannot be regulated. They are forms of speech, and they are protected by the US Constitution. But make one change, using your imagination. See the tattered gray top that the woman—the one being dismembered—is just barely wearing? Imagine sliding it over by a few pixels, enough to expose a computer-drawn nipple. Constitutionally, that changes everything. The image is now obscene. Now you can ban it.

Does that seem right to you?


Post script. Some readers have objected, in private correspondence, that my post is misleading. They say it implies, even though it does not state, that a child can go into ANY video store and freely purchase violent video games, thanks to the ruling in question. They point out that this is not the case. Instead, a consortium of retailers–including Walmart, Best Buy, and other major players making up about 80% of the market–have voluntarily adopted policies which prohibit the sale of mature or adult games to children in their stores. They do this by participating in the Entertainment Software Rating Board scheme.

My response to this is twofold. First, even in the stores with self-imposed policies restricting the sale of extremely violent video games to minors, the actual rate of enforcement of these policies ranges from 65 to 84 percent only. Second, participating retailers make up only 80% of the market, leaving 20% with no such restrictions on sales. Compare this to the ban on selling pornography to minors. In this latter case, all stores, everywhere, are prohibited from selling all “obscene” material to any minor, anywhere. Surely that creates a meaningful difference in access to the two types of material.

Does this mean that kids can’t get their hands on pornography, if they really want it? Or cigarettes, or alcohol, or any other prohibited item? Of course not. Kids will find a way. An all-out ban on sales of violent video games to minors would not result in no minor acquiring such games. Surely some would. But so long as there’s a meaningful difference between the level of access possible with and without a ban, then this “implied” point of my argument would hold.

But then — I didn’t make the argument. My deeper point is not about bans and access issues, but rather about an internal tension in the moral, historical, and philosophical underpinnings of U.S. constitutional law, and the absurdities resulting therefrom. I do not know that I would support a blanket ban on selling violent video games to children. I am not certain that I am in favor of the current, existing ban on sales of Playboy, or the 21-age-limit for sales of alcohol, etc. But I think the point Breyer makes in his dissent reveals a very serious problem in American legal precedent, one which cries out for some hard-nosed thinking. How did this absurdity come about? How might it be addressed? I invite your thoughts.


Post-post script. A number of readers have asked, in one way or another, whether the scenario I describe in “Option #2” is an accurate account of what happens in any actual video games, or in Mortal Kombat in particular. The answer is yes and no. I will explain what I mean by re-posting a reader comment, and then responding to it. “Bob” writes:

Such utter Bullshit. This is not even close to what is happening in Mortal Combat 9. There is no raping (there aren’t any rapes in games that I know). There is no urinating on victims. There is no “role-playing of a [sadistic] protagonist. [Yes], you can play like this in some Roleplay games but [it’s] your own choice and reflects your own mind. The Fatality where an enemy gets pulled in half “starting at [her groin]” as you say it, happens to any enemy no matter [whether they are] Male or Female. [You] just put it out of context.

I agree that there are games that I wouldn’t let kids play but to put it all out of context and basically saying that Video games are all violent and sick is just wrong. Do your Homework next time.

To Bob, and to anyone else with similar concerns, here is my reply.

First, the opening of my post is, as I explicitly described it, a “thought experiment” — based on reality, but at its core a made-up scenario used to make a point. That’s what a thought experiment is. However, the examples I used are not actually fictional. Yes, they don’t all exist in one single game, to my knowledge, but every activity I described is a component of at least one actual video game, all blended together into one narrative, and then illustrated with images from one particular actual video game — Mortal Kombat. The examples I used (raping, urinating, etc.) are taken directly from the Supreme Court ruling, which was based on a review of real, existing, purchaseable-by-children video games. I do see that my post could be taken to imply that Mortal Kombat includes every disturbing act described in Option #2, but I don’t actually state this.

One further comment. The “fatality” that’s shown in the images can indeed be executed on male or female characters. So? I didn’t say that it couldn’t. And if the image I’d included had been of the tearing of a man, I’d have described it using similar language. In my view, the simulated violent dismembering of a man is no less harmful to children than the violent dismembering of a woman; hence both cases would equally support my stance. Or, if it is less harmful (and I could see certain arguments to that effect) it is certainly not less harmful than the viewing of a breast. That’s the whole point of my article.

If, in course of making that point, I was implicitly unfair to Mortal Kombat—if I made it seem somehow worse than it really is—I can’t say that I’m very sorry. Pulling a woman in half is bad enough. That you can’t, in this very same game, also rape her first (though you can do so in other games), doesn’t do much in the way of redemption. Nor is the fact that you can rip a man in half just the same.

All of that is irrelevant to my argument, anyway. The constitutional absurdity I’ve highlighted poses a problem just so long as there is any game that includes any sort of violence that is more harmful to children than any prohibited depiction of nudity.

I hope this point is, once and for all, clear to my readers.

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54 Responses to Sex or violence—Which is more harmful to children?

  • tsc says:
    • Brian Earp says:


      Thanks for the link. I read that article last night, and in my view it amounts to quibbling about the wrong things.

      "Not only did [Stewart] pick a scene from what is arguably the most ridiculously violent game on the market, he also picked the most gory and painful-looking fatality. What's more, he chose a clip in which a female character is getting killed by a man, and in a somewhat sexual manner at that."

      OK, let's grant that the images John Stewart used, which are the same images I included in my post, are among the most gory in the game. So? What difference does that make to my argument? So long as I included a video game image that was plausibly more harmful to children than the image of a breast, my point is made. I chose a particularly graphic image to make my case as un-ambiguous as possible. But is Mortal Kombat–an extremely popular game, as I pointed out–really so unusual in its level of violence? Here's a clip from Call of Duty: Modern Warfare, in which a team of assassins guns down hundreds of innocent people at an airport ( Should I have included images from that game instead?

      "Mortal Kombat is silly and fun while we're playing it, but it's a bit bracing to see a scene from it taken out of context like that, isn't it?"

      I don't know what to say about this excerpt except that it seems to prove my point. That is, at least one type of harm that playing violent video games might cause is the deluded mindset of the article's author: a mindset according to which the simulated violent dismembering of human beings is "silly and fun" until someone takes it "out of context" and spoils the merriment. At the end of the article, the author links to a separate piece he's written in which he "waxes rhapsodic" about Mortal Kombat "fatalities," glorifying in their every detail.

      "It is worth noting that Stewart implied that the court ruling made it so that M-rated games could be sold to children with no regulation, which isn't true at all. The Court's ruling simply determined that the ESRB, the gaming industry's independent ratings association, was sufficient to regulate games with no governmental intervention. The decision makes it no more possible for children to purchase Mortal Kombat (an M-rated game) than they are able to attend movies that have been rated R by the similarly non-government-regulated MPAA."

      In this comment, the author makes a worthwhile point. It is important for readers to understand that at many (though not all) video game stores, proprietors will at least partially enforce a self-made prohibition on selling adult games to children. But even at the stores that have signed on to the ESRB scheme, the enforcement rate ranges between 65 and 84 percent ( And there are a whole number of stores–amounting to about 20% of the market–that don't have any such prohibition, self-enforced or otherwise.


  • SMcQ says:

    Hi Brian,

    From what I understand, video games are classified in the US by the Entertainment Software Ratings Board, in much the same way as films are classified by the Motion Picture Association of America. Mortal Kombat was classified Mature 17+, which is equivalent to the R rating given by the MPAA. Movie theatres in the US restrict children under 17 from attending screenings of R-rated films unless accompanied by an adult; I wonder if anybody's ever bothered to test that restriction in the courts, since it seems that, in keeping with the reasoning of this case, they'd have to rule it unconstitutional, at least in instances where the rating is based on violence rather than sexual content. It's worth noting that Mortal Kombat was completely banned from sale in Australia, after the Classifications Board deemed its content too extreme to be covered under the most severe MA15+ rating, and also banned in Germany.

    I agree that the ruling is absurd, not just for the reasons outlined above, but also because it illustrates how extreme the puritan streak running through US culture is when it comes to sex; while ever-increasing violence in games like Mortal Kombat passes without little comment, the mildest sexual content continues to provoke hysterical, hyperbole-laden reactions from the media. Look at the controversy surrounding such titles as Mass Effect ( and Grand Theft Auto IV(

    • SMcQ says:

      My apologies, it seems you've addressed the first part of my comment in your reply to the previous commenter!

    • Brian Earp says:

      Thanks for your reply. I think we agree with each other. I intentionally stuck to a narrow argument, saying only that IF the image in Option 1 may be deemed harmful to children, opening a legal "free speech" loophole for banning its sale to minors, THEN anything worse than that should be too. That there is a special "harm" exception for nudity and sex (not actually in the Constitution itself, though in the long history of its interpretation through Supreme Court rulings) seems totally unprincipled and inconsistent.


  • Michael Blatherwick says:

    Whilst it is clear that your example of a violent game is more harmful than your example of a sexual image, and also that this article is not the place to debate the overall harms involved, I think that your choice of examples serves to miss the key reason why a blanket ban on "violent video games" to minors would be a terrible thing.

    Obviously, not all sexually explicit material is the same: some of it is more graphic, some of it depicts more explicit acts, and so on. However, in the case of deciding whether children should be allowed to purchase this material, it's clearly been decided at some point that it's all inappropriate: if something is sexually explicit, it cannot be fit for children to buy. Therefore, banning the purchase by minors of anything sexually explicit fits the bill. You may think there should be a sliding scale for this material, but I didn't particularly get that sense from your article.

    Rather, the core of your argument seemed to be that extremely-violent game B is at least as unsuitable for minors as fairly-innocuous-partial-nudity image A, so all games with something in common with game B should be at least as illegal as all images related to image A. Now, if 'violent' were a nice, neat category that encapsulated only games that could reasonably be deemed as definitely unsuitable for children, I would probably agree with you, as general rules seem a good idea overall.

    However, 'violent games' is a fantastically broad idea. Some of the games are unequivocally unsuitable for children, and your example obviously falls into this category. The problem I have with your article is not that your example is one of the most violent games available: sure, you did that for effect, which is fine, and I'm happy to see your logic extended to less violent games. The problem is that you can't extend it to <strong>all</strong> violent games; or, rather, all games in which the player experiences violence or acts in a violent manner.

    Put simply, there are few games I've played in which I *haven't* been violent Give me World Cup '98 and I will turn the referee strictness to zero and mash "strong challenge" until the opposition team is hobbling around the pitch with little 'red cross' icons by their feet to indicate that they really should be in hospital by now. Portal 2? Cooperative gaming with almost no overt violence, but I genuinely lost count of how many times in a row I dropped my friend to his death when his life was in my hands. These games may not illustrate the violence in any explicit way, but there is no doubt that I was acting violently when I played them: that cute little robot <strong>was</strong> my real-life friend, and I really was making him explode in a pit of acid.

    Even with games that are designed with violence in mind, I would have trouble claiming that none was suitable for children: Age of Empires was one of my favourite games as I grew up. I spent hours sending hundreds of little men to their deaths in the name of my glory, and seeing them as tools rather than people doesn't seem to make this any less shocking as a concept. But to group this game in with Mortal Kombat as a game that no child should be allowed to purchase seems absurd: it should be viewed on its merits and, with these in mind, someone should decide whether the violence is too explicit or gratuitous.

    And that's where game ratings come in!

    Game rating systems are used world-wide as guidance to retailers. They are applied to each game individually, allowing for a far greater degree of control than "violent" or "non-violent", and advise the minimum age for which the game is suitable. Just like film ratings, incidentally. In the UK, the British Board of Film Classification (BBFC) rates video games, and these ratings are legally-binding, which seems like the perfect solution. The problem, as I see it, is not that the USA has failed to ban all 'violent' games, but that it doesn't use game ratings in a meaningful way: the Entertainment Software Rating Board (ESRB) rates games and these ratings are displayed on games and marketing materials, but they have no legal weight. Mortal Kombat ended up with a 'Mature' rating, so the packaging carries a clear icon indicating that the game is unsuitable for children under the age of 17, but there is absolutely nothing to stop the game being sold to someone under this age.

    Thus, a system is ready to use that would provide as much protection as a blanket ban, but without the ambiguity: it just needs to be made law.

    • Brian Earp says:

      Hi Michael,

      I don't think we disagree. I think depictions of nudity and sex are more or less appropriate for, say, 17-year-olds to view; and I think games involving violence are more or less appropriate for youngsters too. Depends on the game, the type of violence, the narrative context, the quality and fidelity of the graphics, and so on. We're on the same page. My argument was of the if-then, a fortiori type. IF you think it's OK to ban even the mildest depiction of a breast through catch-all "obscenity" legislation, THEN whatever harm principle you use to justify your stance cannot reasonably fail to cover depictions of extreme violence. If you don't agree with the first type of blanket ban–if you reject the antecedent–then you don't have to accept the consequent.

      The way the law was actually written, by the way, doesn't seem so at odds with your viewpoint, either. Here is how the law was described in the SCOTUS ruling itself (full ruling available here:

      California’s statute defines a violent video game as: A game in which a player “kill[s], maim[s], dismember[s], or sexually assault[s] an image of a human being,” and “[a] reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors,” and “[the game] is patently offensive to prevailing standards in the community as to what is suitable for minors,” and “the game, as a whole, . . . lack[s] serious literary, artistic, political, or scientific value for minors.” Cal. Civ. Code Ann. §1746(d)(1) (West 2009). The statute in effect forbids the sale of such a game to minors unless they are accompanied by a parent; it re­quires the makers of the game to affix a label identifying it as a game suitable only for those aged 18 and over; it exempts retailers from liability unless such a label is properly affixed to the game; and it imposes a civil fine of up to $1,000 upon a violator.

      Would you be OK with such a law?


      • Michael Blatherwick says:

        Hi Brian

        I agree entirely that a ban with a suitable value of 'violent' is entirely in-keeping with the USA's obscenity law: I hadn't read the proposition and so didn't realise that the proposed ban had such a specific (and wholly reasonable) definition of 'violent', and thus was also based on a case-by-case decision. I'm not certain whether I would want there to be levels of ratings (I've always found the whole 15 vs 18 thing a little odd, if I'm honest) rather than just under-18/over-18, but generally it seems like a decent law, and certainly in keeping with the obscenity one.


        • Brian Earp says:

          Thanks for your reply, Michael. I didn't understand what, exactly, the law was proposing when I first started reading about this either. A trick I learned from my older brother is always to find the original language, if possible — and in this case, it's easy enough: the Supreme Court posts all of its decisions on their front page, at This particular ruling is fascinating to read; I really recommend it.


        • Brian Earp says:

          Hi Michael —

          One more thought. Here's what seems to me to be a very reasonable discussion of the broader "free speech" issues, as well as a fair point about parental concerns:


  • Dmitri Pisartchik says:

    That obscenity is not protected speech is an archaic and outdated relic in US law which, unfortunately, cannot be changed by the courts, lest they become overly activist. Personally, I would like that category to be included under protected free speech as well. In my mind it fails on the same grounds that the SC held this ban on video games fails: it "it is [NOT] justified by a compelling government interest and is [NOT] narrowly drawn to serve that interest"

    It should be noted, however, that any retailer is still able to deny a minor customer's attempt to purchase a Mature rated game without permission of an adult guardian. That is, it is not illegal for BestBuy or GameStop to say No to a 13 year old that has walked up the counter with Mortal Kombat or (worse still) Duke Nukem Forever. Will they do so? The cynical response is to bring up the profit motive and claim that retailers will sell anything that is not actually illegal. True enough, but retailers will also respond very effectively to consumer pressure on behalf of parents. Its both false and dangerous to think that all regulation should be done by the State.

    • Brian Earp says:

      Thanks, Dmitri, for your reply. I'm leaning toward your view on "obscenity" — namely that an all-out ban on anything with nudity or sex is probably an overblunt instrument, a relic, and not a good model for free speech legal philosophy. As you can see from my other responses in this comment thread, I was making an "if-then" argument. You don't buy the "if" and I don't really buy it either. So we're probably on the same page about that.

      I'm also wary, with you, of knee-jerk reasoning along these lines, "If something is bad, the state should ban it." That's a dangerous way of thinking to get into. I do think that it makes sense to treat children differently from adults however, and there are many (in my view, reasonable) cases where we do just this. A 12-year-old child cannot legally consent to having sex with a 25-year-old; children can't buy cigarettes, etc. Was the proposed California law the best way to treat children and adults differently with respect to access to violent video games? I don't know, but it might be a good-enough way. I still need to make up my mind on this point.

      Thank you again for your helpful comments.


      • Dmitri Pisartchik says:

        The interesting thing about the examples you list, Brian, (sex with adults, cigarettes, etc) is that they are all fairly uncontroversially covered by the straightforward application of the Harm Principle, meaning that in all of those cases there is a reasonable and fairly clear link between the activity and a tangible harm. Sex with adults is prone to physical injury (in the case of smaller children) as well as exploitation, while cigarette smoke is clearly linked to cancer and other medical harms. However, as the SC also stated in its decision, no similar link to a tangible harm has been established between (violent) video games and harms to (or from) children.

        This again refers to clear State interest (protecting the public from harm) and narrow means of promoting that interest.


        • Brian Earp says:

          I wonder about this "tangible" harm. Does tangible mean physical? I can't see how these games are not self-evidently harmful–mentally if in no other way. If I wanted to run a controlled, experimental study to prove this harm, I don't think I could get ethics-board approval. It'd require taking two groups of young children — none of whom had played violent video games before — and having one group play Mortal Kombat, and the other group play a non-violent game matched for entertainment value, difficulty, graphics quality, and so on. I'd have to have both groups play these games for hours on end over a period of months. Then I'd have to track their behavior to see if the Mortal Kombat group committed more acts of violence, etc.

          I think the fact that no ethics board would allow such a study to be run, because the harm to children in the Mortal Kombat condition would be all but assured, is proof enough that "tangible" harm is done by these games. In fact, the best reason I can see why there's only relatively weak, triangulated evidence in the psychological literature on this topic is because running a strict causal test would be positively immoral.


  • Regina Rini says:

    We should probably disentangle two questions. (1) Is there any reason for thinking that pornographic material is more harmful to children than violent material? (2) Are there good reasons of American jurisprudence to uphold constitutional protection for violent material, while denying that protection to pornographic material?

    I take it that your main goal is to answer (1) negatively, and I'm inclined to agree with you. But it is possible to give a negative answer to (1) and a positive answer to (2) – in other words, it is possible to conclude that the jurisprudential grounds for protecting violence, but not pornography, do not depend on any assumption that pornography is more harmful than violent material. I take it that this is the Court's view.

    The crux of that view relies on the traditional justification for freedom of expression in American constitutional law. Freedom of expression is not protected absolutely; it is protected instrumentally, so as to assure the free traffic in social, political, and aesthetic ideas among citizens. It is a very old finding of American jurisprudence that pornographic obscenity appeals to "prurient interest" alone, and does not attempt to communicate any ideas deserving constitutional protection. See:

    <blockquote>All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. (Roth v. United States, 1957)</blockquote>

    A footnote in the <i>Roth</i> decision appears to define "prurient" material as "material having a tendency to excite lustful thoughts". There seems to be an implicit assumption that lustful thoughts are irrelevant to the exchange of ideas in a free and democratic society. That assumption might be challenged, but it would take a lot of argument. The Court, in <i>Roth</i>, quotes its own earlier claim about obscenity in <i>Chaplinsky v. New Hampshire</i> (1942) as follows:

    <blockquote>such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…</blockquote>

    Note the phrases "exposition of ideas" and "step to truth". Freedom of expression is conditioned on expression having some demonstrable relation to deliberation or cognition, which, apparently, obscene pornography does not. (And, in this connection, recall that in <i>Miller v. California</i> (1973), the Court ruled that pornographic material <i>is</i> protected expression when it contains "serious literary, artistic, political, or scientific value".)

    So the argument for prohibiting the sale of obscene pornography to minors has two steps. First, obscene pornography is not protected expression. Second, since it is not protected, the minimal standards for rightly prohibiting it are far lessened. In <i>Ginsberg v. New York</i> (1968) the Court made exactly this argument to justify prohibiting the sale of pornography to minors:

    <blockquote>But obscenity is not protected expression, and may be suppressed without a showing of the circumstances which lie behind the phrase "clear and present danger" in its application to protected speech. Roth v. United States, supra, at 486-487. To sustain state power to exclude material defined as obscenity by § 484-h requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.</blockquote>

    Now, turning to violent video games. The question is whether depictions of violence should be exempted from constitutional protection in the same way as pornographic depictions. Following the logic above, that will turn on whether or not we think violence, like pornography, appeals solely to interests like the "prurient", and so is devoid of ideas relevant to a free society. In the <i>Brown</i> decision under discussion, the Court clearly does not hold that view. From the majority opinion, in a section challenging Justice Alito's partial dissent:

    <blockquote>JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic clean-sing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.</blockquote>

    If this is right, then here are the grounds for constitutionally protecting violent media. Violent video games contain ideas of some sort, ideas relevant to the conduct of a free society. We may not like those ideas, but if freedom of expression means anything at all, it means that instances of expression may not be prohibited simply because we dislike them. You might be inclined to challenge the claim that violent video games convey ideas, but the Court, in this very decision, does not agree:

    <blockquote>The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948).</blockquote>

    So the relative harmfulness of obscenity and violence is here irrelevant to jurisprudence, because the constitutional protection extended to violence (and withheld from obscenity) does not rest on a calculation of harm, but instead on a conception of the constitutive ideas (of lack thereof) in the two sorts of content.

    It might be interesting to press this argument a bit further. It isn't quite clear what distinguishes a "prurient interest" from the excitation impelled by animated violence – why the latter counts as an "idea" and not the former. The Court seems to presume a fairly complicated mental ontology, which may not be coherent. But that's probably an issue for another day!

    • Brian Earp says:

      Regina– a very thoughtful analysis. I think you're right to disentangle questions (1) and (2), and I think you're right that my main goal was to answer (1) in the negative. I also agree with your analysis of the legal and constitutional argument presented by the court. (What you've said here is very much the same as what Scalia and his joiners said in their opinion.)

      But there are reasons for pointing out an absurdity in the court's position, even if their constitutional reasoning is formally valid. Here is their reasoning just to review:

      1. "Obscenity" is a loophole in free speech protections because it has historically been a loophole
      2. Violence is not a loophole in free speech protections, since it has not historically been a loophole
      3. Violence therefore must meet a stricter test
      3. ARGUABLY, it cannot meet this test
      4. So it does not get an exemption from free speech affordances

      Check, check, check. Given premises, the reasoning is OK. But since the moral outcome is absurd (as Breyer pointed out in his dissent, and as I have tried to argue here), we may want to go back and look at our premises.

      Let's do that. Premise 1 is that obscenity may be banned–free speech notwithstanding–because, historically, you were always allowed to ban it. Well, is this a good premise? I don't think so. "That's the way we've always done it" isn't a good argument when the outcome is as ridiculous as the one in question. There is room for overturning precedent in Supreme Court rulings, when that precedent is seen, in the light of contemporary moral or legal understanding, to be seriously flawed. Think (as an imperfect analogy) of the Dred Scott case.

      Maybe it's time to lose the "obscenity" exemption to free speech protections? (Or add one for violence … though I’d be less eager to even-out the balance sheet by inventing new ways to restrict speech.)



      • Regina Rini says:

        Hi Brian,

        I'm not sure that your premises 1. and 2. are claimed, or even implied, by the <i>Brown</i> decision. The relevant distinction between obscenity and violence is not simply that one has traditionally been treated a certain way and the other has not. The claim is that <i>there are good reasons</i> for treating one a certain way and the other not. Those reasons are the sort I gestured at above: only a certain type of expression – the type tending to convey ideas potentialy relevant to a free society – gets constitutional protection; violent expression fits within that type, but obscene pornographic expression does not; therefore one deserves protection and the other does not.

        The role of precedent is only indirect, in that it adverts to the argument just made (as expressed in earlier findings, including <i>Roth</i>, <i>Ginsberg</i>, and <i>Miller</i>). The attitude seems to be that this is a pretty good argument, and we should stick with it until someone shows how it is mistaken. That, I think, is the extent of the appeal to historical attitudes.

        • Peter Wicks says:

          Hi Regina, I think you put it very well at the end of your first comment when you wrote, "The Court seems to presume a fairly complicated mental ontology, which may not be coherent." Although I might choose a less euphemistic phrase to replace the last four words.

          I do agree with you that the Court is not arguing that because "we have always done it like that" we should do it now. But the idea that the magazine picture depicted in Brian's article does not contain any kind of idea (and idea of beauty, perhaps?) seems highly questionable.

          I guess it's also important to recognise the very significant role that precedence *does* play in common law systems. And, of course, the good reasons we may have for suspecting that sound argumentation was not the only or even primary concern that lay behind this ruling…

          • Brian Earp says:

            Thanks for your contribution, Peter. I agree with you. I was too clumsy in suggesting that "that's how we've done it" is the whole or the main reason for the Court's precedent practice in this case. Regina, and you, are right to say that the REASON there is an obscenity loophole is because relevant people in US history thought that nudity was categorically different from other types of questionable stimuli. I simply think that those people were and are wrong, and that's where I should have focused my argument.


          • Regina Rini says:

            Hi Peter,

            It would be interesting to see how the originators of established Court doctrine on obscenty (none of whom are still on the Court, or even alive) might respond to a challenge to their implicit assertion that the photo in question conveys ideas. One thing to remember is that the three-pronged obscenity test in <i>Miller</i> makes an exception for sexually explicit work with "serious literary, artistic, political, or scientific value" (which is supposed to protect such things as <i>Madame Bovary</i>). Presumably whatever is involved in accomplishing serious literary, artistic, political, or scientific value must have something to do with propagating ideas. But this looks like a great big gap for subjective preferences to creep in (precisely what freedom of expression is supposed to guard against!).

            As for precedent – you're right, of course, that it plays a strong role here. I think that's very defensible though – in general a legal system should defer to precedent, since citizens rely on continuity of law to order their lives. So precedent should trump in the absence of strong reasons to decide otherwise, especially reasons that were not apparent to those who created the original judgment. In this case, I'm not sure we've uncovered anything like the latter sort of reason.

          • Regina Rini says:

            Oops – the above comments should begin "It would be interesting to see how the originators of established Court doctrine on obscenty (none of whom are still on the Court, or even alive) might respond to a challenge to their implicit assertion that the photo in question conveys NO ideas."

        • Brian Earp says:

          Hi Regina,

          This is a fair response. I think you're right to point out that the distinction between nudity and violence is not wholly arbitrary. As you say, historically, lawmakers and jurists in the US thought that there was something particularly bad and valueless about things like exposed nipples; and they didn't think there was something quite so bad or valueless about things like depictions of violence. I just think that these people are wrong. That's all I'm saying. I think that the jurists and lawmakers (and common folk, and everyone else) who were fine with sitting out on the lawn with their children for the entertainment value of watching men slaughter each other in war, who would, indeed, send those very children off to be slaughtered–and who would yet be appalled at the sight of a woman's ankle–had something seriously messed up with their priorities. That their morally questionable distinctions have become ensconced in our case law is no justification–from a moral standpoint–for maintaining those distinctions.


          • Regina Rini says:

            Hi Brian,

            I think that the jurisprudential precedent is still more subtle than you give it credit for. The claim is not simply "we don't like pornography", or even "pornography is bad". After all, the purpose of freedom of expression – according to established doctrine – is to protect even bad expression, or expression that we don't like, since free public discourse needs to be genuinely free (and not pre-determined by governmental arbiters. Indeed, as the majority opinion in <i>Brown</i> argues, depictions of violence need to be protected precisely because they carry a message (as you suggest, of valuing warfare) that might be disagreeable to others.

            The relevant claim is that obscene pornography lacks any message at all. If it lacks any message, then the foundational value of freedom of expression – protecting the free exchange of messages in a democratic society – does not apply.

            As I suggested earlier, we could press the Court's reasoning here – it's not clear what sort of conceptual distinction grounds the gap between the messages purportedly available in violent media and the solely "prurient interest" purportedly appealed to by obscene pornography. Implicit in this is some sort of theory of mental content, which probably wouldn't stand up to careful scrutiny. But, at the least, it's not just a matter of saying that porn is bad and violence is okay.

          • Peter Wicks says:

            Sorry I dropped out of this thread – it's really an interesting exchange! I'm not enough of a moral realist to follow Brian in saying that the original legislators were "wrong", but they do see to have had a horror of obscenity that does not seem to be justified from a utilitarian point of view. I guess that's basically what Brian is saying, using more colourful language. I don't really buy the argument that they had an exception for sexually explicit work with "serious literary, artistic, political, or scientific value" as a defence; the fact remains that they were putting obscenity in a separate category compared to depictions (of violence and mutilation) that from a utilitarian perspective seems to be completely unjustified.

            I do take your point Regina about the value of precedent, but I'm not sure that we should insist that the reasons we have now for changing laws should be reasons of which the original legislators were not aware. Societies' values change, and it's important for the law to keep up with them.

          • Peter Wicks says:

            Or rather, they *should* have put obscenity in a separate category compared to depictions of violence and mutilation, but one involve less restriction, not more.

  • Anders Sandberg says:

    Presumably this blog post would also be legally inappropriate to show to a minor because of the breast and not the blood. Which seems to further undermine the obscenity argument: the picture was clearly not just included to incite lustful thoughts (although I can see a form of marketing angle), but as part of the evidence for an ethical argument. While it could have been left out, the exclusion would probably have made the argument emotionally weaker. So presumably there is social value in its inclusion in this context, making it non-obscene.

    It all hinges on context. Somebody reading this blog just for the pictures (poor sap) would experience it merely as something lustful, while somebody caring only for the arguments would skim past it. This is where obscenity rules truly become problematic because the contexts in which we take in information have become far more complex, pluralistic and mutable than during the time they were legally set down. Community standards have shifted, but there are also plenty of radically different communities. By the standards of the darker corners of 4chan those Mortal Combat pictures are tame – and I suspect the creators of many of the worse pictures are minors by US legal standards. I assume that just a few decades ago no academic philosopher would have dared adding risqué pictures to an argument – today it is just a way of emphasis. In theory courts could try to keep up with the subtleties of context, "knowing obscenity when they see it". But it is implausible that they could maintain such a up-to-date and wide-ranging cultural understanding in a world where every local subculture is simultaneously global.

    Hence the practical and moral approach ought to be to minimize harm, and that of course requires the messy and effortful collection of data, as well as making the fraught definitions of what actually is harmful. I can see why many would prefer not having to hash out the latter part – it is going to be hard even in a homogeneous society, let alone in large pluralistic societies exposed to a wide world with different mores.

    • Brian Earp says:

      Thanks for introducing the point about context, Anders. You're right. Whether the very same stimulus is "prurient" in two given cases, depends entirely upon the subjective experience of the viewer (among countless other factors). Sure, laws have to draw lines somewhere–in a way that applies to everyone … but the more I read through these comments and think about this issue, the more I think this particular line has been very poorly drawn indeed.

  • A very interesting discussion but perhaps a bit too tightly focussed. How should pornography be defined? There is absolutely no doubt that the way in which it is defined in the USA is so all encompassing that it results in widespread and often serious harm. It is not coincidence that the USA is both arguably the most prudish western countries and has ten times the teenage pregnancy rate of for example Denmark. The denial of freedom of speech has been much more effective at preventing access to good role models and objective information than it has at preventing access to poor role models and unrealistic and misleading depictions. NB the pattern of more prudish, worse outcomes, often vastly worse, repeats across a wide range of international comparisons and for every body shame and body knowledge related indicator that we have looked at.

    • Brian Earp says:


      Thanks for your thoughts. Your connection between American "prudishness" and teenage pregnancy–as you present it here–seems pretty speculative. I could see how there might be a link, but: do you know of any hard data on this question? I'd be very interested to see it.


      • it is an area in which there has been surprisingly little research. I have heard that a study by the Guttmacher Institute found, probably in the 1980s, a positive correlation between availability of "pornography" and good outcomes but I have not managed to track it down.

        About ten years ago I did some research into this. We took national attitudes to Naturism as an indicator of body attitudes for western countries. Panel of about 20 experts from the naturist community were asked to rank groups of similar western countries, Scandinavia, Benelux, USA/UK/rest of Europe and so on. That was done before the figures were looked at. The national teenage pregnancy rates were taken from a Cabinet Office report. On a simple more/less binary comparison the correlation between prudery and worse outcomes was about 97%. There was not a single comparison to the contrary. Qualitative consideration of the data showed that smaller differences in attitudes gave smaller differences in outcomes so the actual correlation is probably well above 97%. We also looked at teenage abortion and STIs which found the same pattern but the data set was smaller. I looked at the figures again a year or so ago and the pattern has not changed.

        The psychology part of the Papadopoulos Report explains some of the mechanisms. Advocates for Youth, a USA not for profit, publishes "Adolescent Sexual Health in Europe and the
        U.S.—Why the Difference?" which finds exactly the same patterns as I did and discusses the mechanisms.

        • Brian Earp says:

          Malcolm — thank you for introducing me to this research. I hadn't heard of it, and there is a ring of plausibility to it. I've heard similar arguments about links between abstinence-only education (and parenting) and pregnancy; but I admit I have not read any studies on this issue either. Broadly, that such links might exist, and that there might be a causal relationship running from the repression of sex to sex-related problems, strikes me as not unlikely.

          • Abstinence only sex education. There was a major US government report/assessment recently. I haven't read it myself but apparently it found that abstinence programmes delayed the onset of sexual activity a little but once sexual activity commenced there was increased promiscuity, reduced use of protection and contraception and as is only to be expected given the less responsible behaviour, worse outcomes.

        • Shirl says:

          Glad I've fnially found something I agree with!

  • Anders Sandberg wrote: "… just a few decades ago no academic philosopher would have dared adding risqué pictures to an argument – today it is just a way of emphasis." If the Bailey recommendations are implemented as seems probable then this article may well disappear behind an over 18s only censorship wall. In other words unless you, your family, company, university department or whatever sign up for pornography you will not be able to access this article. Reg Bailey has recommended an internet wide Facebook like system, David Cameron has said that it will be implemented, and there is an 18 month time limit (17 months left) or they will legislate. The consequences for the health and well-being of children and young people are terrifying. The report urges the "precautionary principle" but that acts both ways and the report authors clearly have not thought through the probable unintended consequences of the shifts in attitudes which will result.

    • Brian Earp says:


      I hadn't heard about this proposed legislation — it sounds pretty scary. Can you post a link to some more information?


      • Part of the problem is that they are avoiding legislation and hence avoiding having any real debate.

        Bailey Review

        David Cameron made a statement on the morning of publication that it is to be implemented in full and that they would legislate "if necessary". The recommendations start off with censor the internet yourselves, and within 18 months, or else.

        • Brian Earp says:

          From skimming the report you attach, I guess I'm not quite so disturbed as you are. The recommendations seem basically sound, basically reasonable. If you disagree, can you help me see the hidden danger?

          A different question: whether you agree with the recommendations–i.e., the "proposed solutions" to a purported problem of increasing sexuality in environments to which children are regularly exposed–do you think that there is any sort of problem to begin with? Or do you think there's no cause for concern at the start?


          • Malcolm Boura says:

            I have had to go on a business trip at very short notice due to illness of a colleague. I will reply more fully when I can.

            I agree that it all looks very plausible at first sight but major problem areas:
            * "pornography" not defined
            * "inappropriate" not defined
            * decisions to censor based on complaints not evidence of harm/benefit. (Report admits that no firm evidence that pornography causes harm)
            * it is implicit in the report that all nudity is pornographic/sexual
            * imposes adult perceptions of what is sexual onto children. A complex area but numerous ways in which that can be harmful.
            * implies that children are inherently objects for sexual desire which sends completely the wrong message

          • Malcolm Boura says:

            Is there a problem.?

            Yes, I think that there may be but I strongly suspect that it has been exaggerated and that various interest groups are capitalising on it. However none of the reports have considered the historical perspective so is it getting worse or better? Will it just result in one set of sexual signals being replaced with another? There is evidence to suggest that that will happen.

            I suspect that the following is a substantial part of the process:
            * I don't like it!
            * It must be bad!
            * It must be especially bad for children.
            * and far too many people jump to ban it without pausing to actually think.

  • Brian Earp says:

    Hi Regina — we're out of "reply" buttons above, so I'll respond down here.

    You wrote:

    "The relevant claim is that obscene pornography lacks any message at all. If it lacks any message, then the foundational value of freedom of expression – protecting the free exchange of messages in a democratic society – does not apply. As I suggested earlier, we could press the Court’s reasoning here – it’s not clear what sort of conceptual distinction grounds the gap between the messages purportedly available in violent media and the solely "prurient interest" purportedly appealed to by obscene pornography. Implicit in this is some sort of theory of mental content, which probably wouldn’t stand up to careful scrutiny. But, at the least, it’s not just a matter of saying that porn is bad and violence is okay."

    I'll concede to you another notch. The reasoning IS more subtle than I proposed. But it's no less wrong! Yes, I see — and you're right to point out, and thank you for pushing on this — that early jurists and lawmakers thought that certain depictions of sex and nudity (I don't think we should keep calling these depictions "obscene pornography" as you have been doing, since that begs the question) were lacking in any message at all. I think that's clearly false on its face. If you know anyone who would be able to pull off the contorted conceptual analysis required to make this case, I'd love to meet 'em, and hats off. What is a "message"? What is an "idea"? What if the purpose of an image IS "just" to incite lust (on some fantastically narrow construal of "purpose") … aren't there some ideas being conveyed in that? Namely, something like: lust is a very natural feeling, and inciting it through images, or viewing such images, is an OK thing to do?

    I have some more thoughts on this, but I expect you see my viewpoint.

    I've been very glad to have your thoughtful contributions on this thread, Regina,


  • Mike says:

    <b>Very</b> interesting discussion. Regina, it seems that by virtue of any expression being defined as lacking protection it's use immediately takes on at least a political idea or message. How have court rulings been able to maintain that distinction?
    Also, it seems odd that rape would carry a valid (legally) message that is only rendered obscene by the addition of nudity. But i guess that just implies that the components of protected speech can be treated independently (which I guess makes sense). However, in the case of violent sexual depictions nudity could be considered an 'essential' component of the message or at least of the medium. I'm guessing the court has also been able to maintain that separation otherwise it would lead to situations where violence that also happens to include nudity could be protected while non violent nudity remained unprotected? Sorry for my naivite, I'm not a lawyer.

    • Brian Earp says:

      Mike — this is an interesting idea, if I understand you correctly. Are you suggesting that the very fact that courts have historically treated "obscenity" differently — by exempting it from free speech protections — sort of suggests that there's an idea involved in "obscene" media? Not sure if I fully grasped your point, but that's roughly what I understand you to be saying. Help me out.


  • Boyd says:

    While I agree that the almost double standard between sex and violence is odd, I feel that if that is the case the discussion should be involving all medium not just video games. Since there is no correlation between video games and violence (just like all other media) then a distinction shouldn't be made between them. Also, the law was far too broad in its writing. The current obscenity law bars (I believe this is the wording) nudity, penetration and masturbation. Californias would have added Morbid and Deviant which could be interpreted in many ways. While I would say that perhaps the whole obscenity law should just be removed, one can't just rewrite a whole countries moral values in a day; our country beloved that Addison content corrupted and I can think of no possible way to change this view.

    • Brian Earp says:

      Hi Boyd,

      Sure, one can't re-write a country's moral values in one fell swoop. But do you really think contemporary moral values with respect to sex and violence are well-enough the same as they were 100 years ago? Moral values do change. And if they do; and if our legal system should, to some extent, reflect the moral consensus of an evolving populace, then isn't there room for some re-writing when the old values lead to absurd outcomes (by contemporary standards)?


  • Mike says:

    Hi Brian. Yes, kind of. What I was trying to get at is when something is made legally taboo in a society expressly via government action its use then arguably takes on a political meaning (in addition to other possible meanings) especially when there is not societal consensus on the exact nature or extent of what should be taboo. Personally I think this can happen even without the impact of legal decisions, but those seem to make the process more 'official', ie measurable. Not sure whether that is any more clear. 🙂

  • Bob says:

    @ OP

    "role-plays a sadistic protagonist, torturing a female victim while she screams in agony. Then he rapes her, urinates on her, douses her in gasoline, and sets her on fire"

    Such utter Bullshit. This is not even close to what is happening in Mortal Combat 9

    -There is no raping (there aren't any rapes in games that I know)
    -There is no urinating on victims.
    -There is no "role-playing of a sardistic protagonist" (Ye you can play like this in some Roleplay games but its your own choice and reflects your own mind)
    -The Fatality where an enemy gets pulled in half "starting at the vagina as you say it" happens to any enemy no matter of Male or Female you just put it out of context

    I agree that there are games that I wouldn't let kids play but to put it all out of context and basically saying that Video games are all violent and sick is just wrong.

    Do your Homework next time.

    • Brian Earp says:

      Hi Bob,

      A couple of quick thoughts:

      The first part of my post is, as I explicitly described it, a "thought experiment" — that means that it's based on reality, but is a made-up scenario I used to make a point. That's what a thought experiment means. However, the examples I used are not actually fictional. Yes, they don't all exist in one single game, but every activity I described is a component of at least one actual game, all blended together, and then illustrated with images from one particular game — Mortal Kombat. The examples I used (raping, urinating, etc.) are taken directly from the Supreme Court ruling, which was based on a review of actual video games.

      The "fatality" that's shown in the images can indeed be executed on male or female characters. So? I didn't say it couldn't. And the simulated violent dismembering of a man is no less harmful to children than the violent dismembering of a woman. Or, if it is less harmful, it is certainly not less harmful than the viewing of a breast. That's the point of my article.

      Best wishes,

  • Jay Sellers says:

    One thing that never seems to get brought up in these arguments, is the individual personality of any given child. If we're going to classify a child between the ages of 8-17, then we have to admit you can't cover everything with a single, broad brush stroke. Some are more mature than others. Even within the same age range. This is why we'll never see any clear, tangible decisions from the federal judicial system concerning content in the video game medium.

    This is why there is an independent ratings board, and also that it is not technically illegal to sell to a minor. The government cannot decide what is good or bad for any one person. All cases must be considered on an individual basis, which isn't going to happen.

    However, the video game industry as a whole doesn't do much to help its image. They not only need a ratings board, but also a system in place to educate parents on the differences between classifications. Go out and make your case. Be an educator and an advocate. We've already seen that if you're not willing to do it, someone else will, and I can guarantee that someone will not have the best interests of the video game industry in mind.

    • Brian Earp says:

      Hi Jay,

      Yes, every person is different; but laws cannot be written to apply to each person depending upon his or her personality. Lines have to be drawn, for better or worse. I'm repeating myself now, but my point is simply this. If it is constitutionally OK to draw a catch-all, blanket cut-off line banning the sale of pornography to minors, because such material is deemed harmful to them, then there is no moral justification for saying you can't do the same for violent video games. Your view might be that we shouldn't draw such arbitrary lines in either case, and I would be inclined to agree with you. But this back-and-forth has already happened earlier in the comments thread!


  • D says:

    Why did you make up things about the violent option? No one is urinated on or raped in Mortal Kombat. You took a single Fatality, a finishing move performed in the game and turned it into something sexual. I'd have to assume you know as little about the breast in option 1 as you do the video game in option 2.

    • Brian Earp says:

      Hi "D" —

      I hope you will take a moment to read through the post-script I've added to my blog, as well as to my replies to earlier reader comments. I've addressed your concern already.


  • Parents should determine what their children see on tv, movies and games. It's that simple.

    • Brian Earp says:

      Hi Torrence —

      Wouldn't it be great if life were that simple? But it's not.

      Parents cannot keep their children under 24-hour surveillance to determine everything their children see or participate in. And not all children have happy, loving, attentive parents to monitor their behavior. I think it makes sense, then, for society to agree to put in certain roadblocks "at the point of purchase" for children in particular for these very reasons–when it comes to certain harmful items. We already do so when it comes to alcohol, cigarettes, etc. — do you think that's the wrong approach? Children should be able to purchase cigarettes without restriction? In fact, laws like the one proposed by the California legislature are specifically designed to HELP parents "determine" what their children can access in terms of violent video games. Only by restricting the sale of violent video games to children can you ensure that it is an adult who makes the purchasing decision. So I guess I'm not sure what you're suggesting. I am sure that saying things are "that simple" is almost always wrong. Very few things are "that simple."