Video game vice

Terry Jeffrey
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Posted: Jan 05, 2005 12:00 AM

It is Nov. 22, 1963. You are Lee Harvey Oswald, you are in the Texas School Book Depository, and you are taking aim at President Kennedy.

 That is the sickening premise of "JFK Reloaded," a videogame any kid with $9.99 and an Internet hookup can purchase and play. It was also the last straw for Rod Blagojevich, Democratic governor of Illinois.

 "I watched that, and I felt a great deal of outrage and contempt, and thought to myself 'someone ought to do something about that,'" Blagojevich told ABC News last month.

 Blagojevich, a liberal, is now proposing legislation in Illinois that deserves the support of conservatives nationwide. It bans the distribution, sale and rental of graphically violent and sexually explicit video games to children under 18. Merchants who provide such games directly to kids -- but not indirectly through their parents -- would be guilty of a misdemeanor punishable by a $5,000 fine or up to one year in jail.

 Blagojevich's proposal is already under fire from those who argue the First Amendment protects a "right" to peddle violence to children.

 In a Chicago Tribune op-ed, Clay Calvert, co-director of the Pennsylvania Center for the First Amendment, argues that Blagojevich's proposal "gives short shrift to freedom of expression and the reality that legal precedent weighs strongly against the constitutionality of measures restricting the sale of violence."

 In 2003, the Missouri-based Eighth U.S. Court of Appeals shot down a St. Louis ordinance similar to Blagojevich's proposal. In 2004, a federal court tossed out a Washington state law banning the sale to minors of videogames depicting graphic violence toward police. But Calvert especially cited a 2001 precedent set by Judge Richard Posner of the Illinois-based Seventh U.S. Court of Appeals. Posner -- unfortunately, a Reagan appointee -- wrote for a three-judge panel that overturned an Indianapolis law prohibiting video parlors from allowing children to use graphically violent video games unless accompanied by a parent.

Posner wrote in that case, American Amusement Machine Association vs. Kendrick, that it is not just videogame makers, retailers and distributors who have free-speech interests at stake," said Calvert. "Posner observed that 'children have First Amendment rights,' adding that 'to shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.

 In his opinion, Posner explained what he sees as the First Amendment value to children of "Ultimate Mortal Kombat 3," a game in which a woman armed with a "huge" sword duels with -- and invariably kills -- similarly armed men. "(T)he game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men," said Posner. "It thus has a message, even an 'ideology,' just as books and movies do."

 The bad guys, in this judge's view, are not the merchants selling violent games to children, but the parents trying to stop them.

 Insisting that parents accompany children to the merchants' parlors, ruled Posner, placed too much of a burden on the First Amendment right of children to receive the message -- or "ideology" -- purveyed by the makers of violent games.

 "Many parents are too busy to accompany their child to a game room," he says. "Most teenagers would be deterred from playing these games if they had to be accompanied by mom ... and conditioning a minor's First Amendment rights on parental consent of this nature is a curtailment of those rights."

 But Posner did open the window slightly for alternative judgments against even more graphic games than those under question in Indianapolis. "We have emphasized the 'literary' character of the games in the record and the unrealistic appearance of their 'graphic' violence," he said. "If the games used actors and simulated real death and mutilation convincingly, or if the games lacked any storyline and were merely animated shooting galleries (as several of the games in the record appear to be), a more narrowly drawn ordinance might survive a constitutional challenge."

 For now, however, Posner's precedent is the law of the land in Indiana, Illinois and Wisconsin, which are governed by the Seventh Circuit.

 Aristotle believed education means teaching children to love what is right and hate what is wrong. Violent videogames do just the opposite. If Posner's basic reasoning were upheld by the Supreme Court, American parents would not have the authority to stop a virtual Oswald from teaching their kids how to assassinate a president -- or a virtual madman from instructing them in mass murder.

 Here is hoping Illinois' Democratic governor ultimately prevails in his moral combat with the precedent set by a Republican judge.