Should We Regulate Video Game Violence?

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Should We Regulate Video Game Violence

03/30/2018

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Cheryl Olson: I don’t see a correlation when you look at the larger health picture of the country between availability and use of violent games; it increases in everyday physical harm to other people.

Kevin Saunders: I mean, if I am wrong and violent video games don’t cause children to behave badly, but we limit their access anyhow, the cost of that is they don’t get to play video games and they go out and play soccer instead.

But if you are wrong and they do cause children to react violently, but children get to play them anyhow, the cost is psychologically damaged children and other children who are physically harmed by the violence that they do.

Now, I don’t know which one of us is right and which one of us is wrong, but I can live with my error more than I would live with your error.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog called May it Please the Court and have a book out titled The Sled.

Bob Ambrogi: And this is Bob Ambrogi coming to you from Massachusetts, where I write a blog called LawSites. I also co-host another Legal Talk Network program called Law Technology Now along with Monica Bay.

J. Craig Williams: And Bob, before we introduce today’s topic, we would like to thank our sponsor Clio.

Clio’s cloud-based practice management software makes it easy to manage your law firm from intake to invoice. Try it for free at  HYPERLINK “http://www.Clio.com” clio.com.

Bob Ambrogi: Well Craig, we are in a time when teenagers and children are captivated by the allure of electronic media and technology, iPhone, social media, video games and everything else. After the recent school shooting in Florida the topic of video game violence and its impact on children and teenagers was addressed. There was evidence that the shooter played a number of video games himself and President Trump suggested that perhaps violent video games should be regulated.

J. Craig Williams: Well Bob, in the 2011 Supreme Court ruling of Brown v. Entertainment Merchants Association, it was decided that California law restricting the sales of violent video games to minors violated the right to free speech.

So today on Lawyer 2 Lawyer we are going to take a look at that regulation of video game violence, Brown v. Entertainment Merchants Association and its 2011 ruling, the Supreme Court, and a potential challenge to Brown, as well as the impact of video games on children and teenagers.

Bob Ambrogi: Helping us do that today are two guests who are experts in this area. First of all, I would like to welcome to the show, Cheryl K. Olson. Cheryl is an internationally known expert on using media to change behavior, promoting mental and physical health and the effects of electronic media on children. Cheryl co-founded the Center for Mental Health and Media at Massachusetts General Hospital/Harvard Medical School.

And with her husband, Dr. Larry Kutner, she turned that research into a book called “Grand Theft Childhood: The Surprising Truth About Violent Video Games, and What Parents Can Do.

Welcome to the show Cheryl Olson.

Cheryl Olson: Thank you.

J. Craig Williams: And Bob, our next guest is Professor Kevin W. Saunders. He is the Charles Clarke Chair in Constitutional Law Professor at Michigan State University College of Law. Professor Saunders is the author of two books, “Violence as Obscenity: Limiting the Media’s First Amendment Protection” and “Saving Our Children from the First Amendment.”

Saunders filed an amicus brief supporting California on behalf of Common Sense Media in the Brown case.

Welcome to the show Kevin Saunders.

Kevin Saunders: Thank you.

Bob Ambrogi: So after the shooting in Florida, President Trump very specifically said that violent video games and movies could play a role in school shootings, and he is certainly not the first to have made that claim.

Cheryl Olson, you have done a lot of research on that. What’s your take on that issue, do children playing violent video games cause them to be violent?

Cheryl Olson: One thing that’s fascinating, when you look back historically, every time there has been a new medium that’s come online from cheap paperback novels in the late 1800s, to gangster films, to Teenage Mutant Ninja Turtles, there’s been a concern about how it’s going to affect the behavior of young people.

And one of the things we are finding, one of the difficulties with singling out video games is first of all, the typical teenage boy and a lot of the teenage girls nowadays play at least one or two violent video games on a regular basis. So it’s a normative activity. So it’s really hard to say — it’s like saying Crest toothpaste is linked to a particular problem. It’s just ubiquitous.

(00:05:04)

Bob Ambrogi: Well, I mean there is a little bit of difference between toothpaste and violent video games. I mean the violent video games in fact contain violence and children engage in violent behavior in the course of playing those games. Doesn’t that make a difference?

Cheryl Olson: Well, first of all, in case you had noticed, we did have violent behavior before video games existed, so that’s one issue.

Also, when children are engaged in violent video games, children or teenagers, they are playing; they are not actually trying to hurt somebody. That’s one of the big arguments in the research actually is what do we mean by aggression, and a lot of researchers will study — they will do experiments on college students oftentimes because they are easy to get a hold of and they will have them — they will see, is this one going to give a little louder blast, a static noise, to this other one if they win or lose something, or they will look at aggressive thoughts or feelings.

And listeners who have a small child at home and might be having a tantrum now and then will have aggressive thoughts and feelings toward that tantruming child, that doesn’t mean they are actually going to harm the child, and that’s where these things fall down sometimes is that, are aggressive thoughts and feelings the same as aggressive behavior intended to harm?

One of the things we see, for example, the CDC in February, their latest report on nonfatal assaults among persons aged 10-24, covering 2001 to 2015, nonfatal assaults, which I guess you could argue would be the thing you would most worry about, aside from the bizarre rare thing like a school shooting, those are actually down and they have been going down and down.

I have even seen economists argue, some of these behavioral economists that violent video games actually decrease violence, because people get those urges out or they are not out on the street.

I am not going to go that far, but it is — I don’t see a correlation when you look at the larger health picture of the country between availability and use of violent games; it increases in everyday physical harm to other people.

J. Craig Williams: Kevin, what’s the California regulatory backdrop for all of this? What was California’s basis for enacting the regulation?

Kevin Saunders: There was a concern there about the impact of violent video games on children. It was a bill that was introduced by a psychologist and was based — his attitudes were based on reading a lot of psychologists who do in fact find a causal impact of violent video games on violent behavior in children, and backed up by statements by major health provider organizations; the AMA, the Psychiatric Association, Adolescents Psychologists Association and so on. There’s a great deal of concern in the industry.

Again, no one is going to claim that any kid that goes and plays a violent video game is going to turn violent. There has been a long history of blaming the media for the negative aspects of childhood. But there is an instructional aspect in the first-person shooter games that wasn’t in those others, to the point where in one of the school shootings it appears that the child that did the shooting was incredibly accurate and had no real experience with actual firearms, only with video games.

So something on top of the other areas —

Cheryl Olson: I am so sorry to interrupt. Actually the case of this student, that might have been the Paducah shooter. They actually did subsequently check that that person did have experience with a gun. In fact, I think I guess the previous day had experience with a gun.

So everything with this — just as with anything else in media now, things run ahead so fast, you have to double-check everything, and I am having to constantly double-check things before I repeat them. I urge people to look it up.

But I don’t believe that there’s any — in every one of these cases the person has had experience with a real firearm. And also, if you are shooting at a group of people who don’t expect to be shot at and they are all standing still, it doesn’t take a lot of skill to actually hurt somebody, I am sorry to say.

Kevin Saunders: Well, I did look it up. I couldn’t double-check the people who I looked up, but I did look up reports on it, and I may be wrong.

And one of the things I come back to on this is, what’s the cost of the error? I mean if I am wrong and violent video games don’t cause children to behave badly, but we limit their access anyhow, the cost of that is they don’t get to play video games and they go out and play soccer instead.

But if you are wrong and they do cause children to react violently, but children get to play them anyhow, the cost is psychologically damaged children and other children who are physically harmed by the violence that they do.

Now, I don’t know which one of us is right and which one of us is wrong, but I can live with my error more than I would live with your error.

Bob Ambrogi: Well, what happened Kevin, what do you say about the Supreme Court decision? I mean Justice Scalia of all people wrote the majority opinion in the case saying that there is no scientific evidence that violent video games lead to violence in the real world. Did the Supreme Court get it wrong there?

(00:09:53)

Kevin Saunders: The courts have been very skeptical in terms of the evidence. They have not been demonstrating a good understanding of statistics, demanding things like statistical certainty. Well, there is no such thing as statistical certainty.

Belittling the idea of meta-analysis; the judge who said that — Professor Anderson, who is one of the leading figures in this area, seems to think you can take one insignificant result and pile it on top of another and another till you get a significant result, and that’s the whole practice of meta-analysis, so he just dismissed it altogether.

There is also some interesting neuropsych evidence that’s coming out in terms of impact on the areas of the brain that are involved in inhibition and judgment. And a federal judge said, well, just because the prefrontal cortex isn’t operating normally doesn’t mean that inhibition isn’t being exercised someplace else in the brain. But there is no indication it’s ever exercised someplace else in the brain. So there is a refusal to let science get in the way of dogma.

Justice Scalia, you said of all people, but Justice Scalia is a very strong First Amendment advocate or was a very strong First Amendment advocate, so it was not that surprising that he took that position.

J. Craig Williams: Kevin, what kind of regulations can be imposed on First Amendment rights; we have time, place, manner, what kind of restrictions will the courts tolerate in this instance?

Kevin Saunders: It’s not likely that the court currently will tolerate limitations in this area. I will point out that since the decision turned on whether or not the science could demonstrate harm, it may not be a decision that can’t change in the future. All the court could say is that the science as its developed to this point doesn’t demonstrate that we need to limit children’s access to video games, but if the science develops to the point where the court sees it as being necessary, the court could come to a different decision.

And I will point out that it was only effectively on this issue a 5:4 decision. Now, I know it read 7:2, but two other justices, Alito and Roberts said that the evidence may be sufficient, but that the statute was too vague.

Bob Ambrogi: I mean, there seems to be general agreement that the California statute was a poorly written statute. Most commentary you read about the case seems to agree with that proposition, but what are the chances that this case might be overturned or reversed?

Kevin Saunders: In the short-term I don’t think there’s much chance. In the long-term, just depends on how the science develops.

Bob Ambrogi: What is that? What needs to be developed? In other words, there needs to be stronger evidence then there is now or what does there need to be?

Kevin Saunders: Stronger evidence. And I am not sure that the court is going to buy the evidence of psychologists.

Again, the mind is kind of mysterious, not everybody that smokes gets lung cancer, not everybody that plays these video games becomes violent, but we seem somehow to be able to understand the causal action in lung cancer better than in psychology.

I think if anything is going to convince the court to change its mind eventually it will be the developing science in neuroscience and the functioning of the prefrontal cortex.

J. Craig Williams: Cheryl, where do you think this line needs to be drawn?

Cheryl Olson: Well, I think in terms of the research. One of the things I would like to see is more research on young people who actually have previously tried to harm people or property and see if they are differentially affected by video games, try to look at the people who are actually at higher risk. I actually tried to do such a study and had a sample ready to go and couldn’t get additional funding to do it.

I think one of the difficulties too of the California law was that they never seemed to be able to show why video games in particular were worse than movies or other kinds of things.

If you go to an R-rated movie, the violence in those, I mean that has demonstrably gotten worse and worse over time. There has been sort of, what you call ratings creep, where what used to be R is now PG also, much more violent than any video game that you will see a child playing or a teenager playing.

And think about the game also, if you got upset or scared by a game, you can stop and the game stops. You walk away. If you are watching a scary or violent movie, that movie keeps going, unless you flee the theater. So there is sort of a little stopgap with games.

But I also want to mention that games have ratings for a reason. I am by no means saying that parents should just throw up their hands and say I will let my kids play whatever they want or watch whatever they want. I am an advocate of keeping game systems and TVs out of children’s bedrooms in fact because we know — the research that I did at Harvard, we found that kids with game systems and computers in their rooms played more of the maturated games and for more time than kids who didn’t have that access.

And also the best research we have, which I think no one disagrees on, is that having electronics in the bedroom interferes with children’s sleep and that affects their health and their school grades and social life and the whole range.

Kevin Saunders: I would like to add on the rating systems, but the rating systems are only voluntary rating systems in this country. I would like to see them enforced, not against parents, if parents think their child is sufficiently mature or is sufficiently nonaggressive to handle the game, then I have never worked on a statute that suggests that parents shouldn’t be able to get them for their children. It’s the third-person vendor that I was concerned about and it was addressed by the California statute.

(00:15:01)

Cheryl Olson: I know. In fact, I am just editing a book called Child Psychiatry in the Media and I was just reviewing some of the research the FTC had done on the enforcement of sales to minors of music and DVDs and video games and so on and while it’s far from perfect, the last surveys they did show that the enforcement had gotten better than ever. The major retailers at least are carding and are trying to restrict access.

Around the world a lot of the rating systems are government partnerships, if not strictly government, and it’s really a matter of — for whatever various reasons in the United States we have decided we don’t want government regulation, we want to be independent, but in fairness, most of the rating systems were created one step ahead of government regulation to forestall it.

Kevin Saunders: That’s an important point. Other countries around the world the rating systems are not voluntary. It’s a crime to distribute a game to a child that’s too young for the ratings.

But it was an answer to — there was a blogger who talked about, oh, it must not be video games, it must be guns in this country that are the problem, and I don’t belittle the problem that guns cause as well, because all of these other countries have video games, but the blogger failed to recognize that in those other countries they can’t sell those games directly to children. And it’s true that the major retailers are doing a better job here, but there are still other retailers that are not doing quite as good a job.

Cheryl Olson: There’s definitely a cultural component. If you look at the media in say Japan, there is a lot more violent content in a lot of the manga and things like that in Japan, but they don’t have access to guns.

We could argue for 10 hours about this and I prefer to look for the common ground, which I think is — and I think it’s also important to look at, US media does have a heck of a lot of violence in it. One thing you will see with the rating systems in other countries, they are very lenient about cartoon, nudity in games and things like that, but they are strict about violence.

They even have in some cases asked games — they have asked to have the blood turned green or asked to have the soldiers have gears and springs come out so they look like robots; countries that have more of a heritage of — concerns about war, like Germany. And I would like to see our country make more things available with low violence ratings, for example, so that parents could choose, I will let my child play that game, but I want to play it on the low violence setting. I would love to see that.

Bob Ambrogi: We are going to continue this discussion in just a moment, but we need to take a short break to hear a word from our sponsors. So please stay with us, we will be right back to talk more about regulation of violent video games.

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi, along with my co-host J. Craig Williams. We are talking today with Cheryl Olson, internationally known researcher on video game violence and Kevin W. Saunders, Professor of Law and author of the book “Violence as Obscenity: Limiting the Media’s First Amendment Protection”.

Cheryl, I want to ask, is there any evidence in the research of beneficial effects to children from playing violent video games?

Cheryl Olson: In terms of violent games, a lot of the violent games have a lot of competitive elements and things in them and a lot of collaborative elements. I am not going to argue that the violence is good, but what I have seen is a lot of these games that are mature rated or teen rated are — for example, you can put them in collaborative modes, where you are working with a team of people over the Internet to forward your side in whatever way.

And I think there is some real evidence for the benefits in terms of learning to lead, learning to follow, learning to collaborate. My background — I have a daughter in public health so I tend to look at things from a public health perspective, and one of the things that is sort of — one of the tasks of adolescent development you might say is to try on different identities and see what it’s like to do different things, and that’s one reason often kids get into trouble with drugs and alcohol.

And if you are playing a game, a role-playing game online where you can take on the role of a soldier or a thief or someone of a different gender or what have you and you can act a different way with your friends and then say, oh, that’s the game character being that, that’s not me. I would much rather see them doing that than doing something in the real world where they say, well, I was drunk and I didn’t mean it and then they probably have the risk of getting somebody killed.

Another benefit we see with games more in general is the chance for kids to learn how to persist toward a goal. They fail. They try again until they beat that level. They learn how to deal with frustration and persevere and there is a lot of research; you might have seen Walter Mischel’s research with this thing, where they would give a kindergartner a marshmallow and say if you wait five minutes and don’t eat it, when I come back I will give you another marshmallow.

(00:20:03)

He did a book I think a couple of years ago talking about this research. They found long-term, kids who could learn to delay gratification and deal with frustration by not eating that marshmallow; they lick it or they put it down and turn around or sing a song, those kids actually had better entrance exam scores, better school grades, better social relationships.

So in a way video games, age-appropriate video games, I think they have a lot of benefits for kids. Again, you want — the rating system is there for a reason. I urge parents to go to the Entertainment Software Rating Board website, read the synopsis, read why they rated it the way they did, and see whether they decide it’s appropriate for their child.

Kevin Saunders: I think the only difference we have there is not whether or not video games can be good for kids; everything that Cheryl said I think is correct and virtual worlds I think can be a valuable place for some people to be; I just don’t want to leave all the responsibility on the parents. I would like to be able to back up what the parents want by not allowing the retailer to sell directly to the child, and if the parent thinks the child should have the game, have the parent go get the game.

J. Craig Williams: In the Brown case, Justice Breyer wrote a dissent where he describes this scene from — that was submitted on the record in the case from a video game, where it describes the character shooting out a police officer’s knee, dousing him with gasoline, lighting him on fire, urinating on his burning body and then killing him with a gunshot to the head, a really disturbing scene from a video game.

So Kevin, given your belief that this case isn’t going to be overturned in the immediate future, what can be done, anything?

Kevin Saunders: Education of parents, trying to increase the vigilance of parents in terms of what the children do have access to is about the only thing that perhaps we can do in the short-term, and again, I think in the long-term as the science develops there is the possibility of putting some legal teeth behind the ratings.

Bob Ambrogi: So legally nothing at this point is what you are saying?

Kevin Saunders: I don’t see any likelihood at this point.

J. Craig Williams: Cheryl, we had the unfortunate incident several days ago of a young man, I believe nine-years-old, who picked up a gun out of his mother’s bedroom and shot his sister in the back of her head when she wouldn’t turn over the video game controller. I mean that just screams issues.

Cheryl Olson: The game you mentioned a moment ago that they — California drew almost all of those examples of depravity in video games from a game called Postal 2, which was a really obscure game that virtually nobody played, and I think it was only sold online in fact most places.

It was kind of a game that seemed designed especially to upset somebody’s mother basically, kind of like dyeing your hair blue and a mohawk. You really have to double-check what people are actually playing.

And secondly, this thing about the nine-year-old shooting his sister, if the magic phrase video game controller had not been in the story, I doubt that would ever have made the news anywhere.

I remember maybe four or five years ago where some boy got a gun out of his grandmother’s purse and happened to be playing a video game and shot someone. And the commonality here, these things that make the news are people — it’s like this mental frame, people have video games and so that’s the thing that rises to the top; when the issue is why is there an unrestricted firearm accessible to a nine-year-old? What the heck is happening in that household? Because the game controller, that’s a normal thing that you find in lots and lots — millions of households across the country; an unrestricted loaded gun, that’s not something you find.

Kevin Saunders: The fact that it was a game controller doesn’t make it a video game issue; it could have been anything that the child wanted and that the sister had. The other case that was mentioned, if a child had been playing video games and got a gun and shot someone, that might be a little bit closer to the concerns that I have.

Law enforcement concerns have been quite strong. A statute that was passed in the State of Washington and later thrown out was specifically games in which the player shot law enforcement officers and the courts didn’t like the specificity of it, but I wrote a brief in that case and I was representing the Police and Sheriffs Association and a variety of law enforcement associations, they really did have a concern about this.

Bob Ambrogi: So is the focus on video games at all a political move to deflect from the gun issue? I mean no less person than Wayne LaPierre, the head of the NRA, has specifically put the blame on video games for sowing violence among people who play them. Is this a political maneuver?

Kevin Saunders: I think that it is. And if you look at it, the liberals are going to blame guns and the conservatives are going to blame video games, and it’s a combination of the inclination and the means, and I think we need to address both. And there’s a failure in terms of liberals and conservatives to recognize two sides in fact of the video game issue and the juvenile justice issue that the liberal position that you shouldn’t punish teenagers as strongly as adults has to do with the plasticity of the developing teenage brain.

(00:25:06)

But the other aspect of that plasticity is what the impact of the environment is. And again, one side emphasizes one aspect and the other side emphasizes the other aspect. Nobody is willing to put the two of them together.

Cheryl Olson: I want to say two things. First of all, I think it’s hard not to see jumping to the video games instead of guns as a political tool, and I have met with politicians from both parties over the research that I was doing in recent years, including Vice President Biden after Sandy Hook, and one of the things that really strikes me about this is it’s so much easier for the politician to talk about something simple and concrete that could be addressed with a ban rather than something like familial violence, violent neighborhoods.

If you look at the vast majority of research on real world violence, use violence prevention, at most they have violent video games as a footnote, any media violent as a footnote, because it’s mostly about family violence, neighborhood violence, gang violence, even head injuries and things of that nature. So I think that’s one of the things they need to keep in mind.

The other thing is that any kind of media violence exposure doesn’t happen in a vacuum. It’s not like monkey see, monkey do. A child is playing a video game or watching a movie, they are usually playing a video game with friends, they are seeing a movie in the family context and it’s up to the parents to engage in what we call media literacy, education, and talk to kids about what they are seeing or playing. Why do you think they showed that happening? What do you think would be the result if that happened in the real world?

I did focus groups with thirteen-year-old boys as part of my research at Harvard, and even some of them were expressing concerns about, gee, if there is a violent movie and you see someone’s arm get cut off, you might really be upset the first time, but the 20^th time, maybe not. They were worried about being desensitized to violence.

And what I think happens and based on the many psychiatrists I have worked with, I think what happens is they do get desensitized to media violence. But the real question is does that jump to being desensitized to real life violence? And I think there may be some cases where kids have other pre-existing problems where that could be an issue, but the vast majority of kids, they know what’s real and what’s not, and that’s why also in my research we have found that the kids — kids spontaneously brought up several times what really scares me is the TV news, because in video games, you know it’s fake, and the news is real, and that’s scary.

J. Craig Williams: It looks like we have reached the end of our program. We would like to invite our guests to share their final thoughts at this point. So we will give each one an opportunity to wrap up and also give their contact information so our listeners can get a hold of you.

Kevin, we will turn it over to you.

Kevin Saunders: Yeah. I don’t disagree with any of the position that — it’s up to the parents to handle their kids, to contextualize the violence for their kids and so on, I think that’s the best thing that can be done.

All I try to do in my work was to back up the parents by not allowing third-party stores and the like to distribute these games to kids. The parents know which kids or they should know which kids are the ones that are more likely to be susceptible. And that’s what the California statute did, it was only addressed to third-party vendors, but the court did strike it down, and as I said, I don’t see that changing in the short-term.

Well, in terms of contact information, I can be reached through the Michigan State University College of Law website; it will have my phone number, email address and the like on it.

J. Craig Williams: Great. Thank you very much. And Cheryl?

Cheryl Olson: Yeah. I think parents need to keep in mind that research finds over and over that the apple doesn’t fall far from the tree in terms of values. What you say and do in your daily life will affect your children much more, but be very mindful of your own behavior with media and what you expose them to, even background television; a lot of households have that stuff running in the background all the time. So do think twice and take control of your kids’ media use.

If people would like to see the research I have done in this area, my website is  HYPERLINK “http://www.drcherylolson.com” drcherylolson.com and my book “Grand Theft Childhood” is still available on Amazon, if they would like to look into that further.

Bob Ambrogi: Well, thanks a lot to both of you. We have been speaking with Cheryl Olson, an internationally known researcher on video game violence. And Professor Kevin W. Saunders, author of the book, “Violence as Obscenity: Limiting the Media’s First Amendment Protection”.

Thanks to both of you for taking the time to share your thoughts on this topic today.

Kevin Saunders: Thank you.

Cheryl Olson: Thank you.

Bob Ambrogi: And that brings us to the end of the show. If you liked what you heard today, please rate us on Apple Podcasts.

J. Craig Williams: You can also visit us at  HYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

I am Craig Williams, along with my co-host Bob Ambrogi. Thanks for listening. Join us next time for another great legal topic; when you want legal, think Lawyer 2 Lawyer.

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