In the aftermath of the tragic shooting spree that left 20 children and six adults dead at Sandy Hook Elementary School in December, attention has focused on what caused 20-year-old Adam Lanza to do such a thing.
Investigators discovered that he liked to completely black out his bedroom and play violent tactical shooting video games, such as the popular "Call of Duty: Black Ops II."
But did his fascination with these kinds of video games somehow correlate with the tragic killings in Newtown?
That very question is now being discussed by the state Legislature, as lawmakers consider any new measure that might prevent another mass shooting from occurring, especially by youths and young adults.
Besides the obvious gun control measures that are being widely debated, several lawmakers in Connecticut want to crack down on the violent video games that Lanza was known to play.
One proposal aims to limit access to public arcade video games with guns by not allowing anyone under 18 years old to play them. Another bill looks to add a 10 percent tax on all video games rated M, for mature. And yet a third bill seeks to create a task force to study whether there is a link between playing violent video games and committing violent acts.
"If the task force determines that there is a connection, it would allow lawmakers to consider additional public policy changes and influence how parents and others deal with violent video games," Republican state Sen. L. Scott Frantz said in a statement. "All eyes are on Connecticut, and this legislation would be a good first step forward to understanding this critically important issue."
Despite all the proposals, First Amendment law experts say the legislators are wasting their time. They insist video games are protected speech, just like music and movies.
"We completely understand the need and desire to find solutions to youth violence but we don’t think this is the solution," said David McGuire, a staff attorney with the American Civil Liberties Union in Connecticut. "We take the position that video games have the same First Amendment protections as books and film and it’s very difficult for the legislature to regulate them for that reason."
If litigation in other states is any indication, the First Amendment advocates are right and the Connecticut lawmakers have an uphill battle ahead of them.
According to the Entertainment Software Association, there have been a dozen cases in eight years in which other states tried to impose state-level regulations on video games. The Association challenged all of them and won every time.
The most notable and recent case, Brown v. EMA/Entertainment Software Association, originating out of California, went all the way up to the U.S. Supreme Court.
In that case, the video game industry asked the Supreme Court to find unconstitutional a 2005 California law restricting the sale and rental of computer and video games to minors.
The 9th Circuit U.S. Court of Appeals ruled that the law was unconstitutional, citing that the measure restricted free speech. In 2011, the Supreme Court justices agreed, stating in a 7-2 opinion that video games deserved the same free speech protections as books, movies and plays.
"California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none," wrote Justice Antonin Scalia. "Certainly the books we give children to read–or read to them when they are younger–contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ’till she fell dead on the floor, a sad example of envy and jealousy.’ Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel kill their captor by baking her in an oven."
Despite the Supreme Court ruling, Connecticut lawmakers want to curtail access to violent video games. Democrat state Sen. Toni N. Harp, has sponsored a bill that would prevent minors from using violent point-and-shoot video games in public arcades.
Following the Newtown tragedy, complaints surfaced about a point-and-shoot video game called "Time Crisis" that could be heard loudly at a small arcade inside a Newtown area rest stop. Though the game is still there, the game was removed from rest stops along the Massachusetts turnpike. (Calls to Harp’s press aide, seeking an interview with the senator, were not returned.)
In 2001, Connecticut lawmakers tried passing a similar law that would fine businesses that allowed minors to play video games with "violent point-and-shoot video simulators."
Then Gov. John Rowland vetoed the bill on various grounds. Among them was the legal rights of parents to determine the types of games their children can play. Rowland’s veto was also based on the fact that there was no direct evidence playing such games leads to violent behavior in children and that the act was constitutionally suspect.
More than a decade later, the same arguments made by Rowland in vetoing the bill in Connecticut are being raised by First Amendment lawyers who say the 2011 Brown Supreme Court decision trumps anything that the Connecticut lawmakers have recently proposed.
"[The proposed Connecticut legislation] is doomed to fail, born in ignorance," said S. Gregory Boyd, an original member of the Video Game Bar Association, which formed two years ago. "There’s never been a credible study that video games have a different effect on people when it comes to violent behavior."
Boyd, who practices law at Frankfurt, Kurnit, Klein & Selz in New York City, said every decade has something that gets blamed for bad behavior of youths; whether it be comic books, rock and roll or Dungeons and Dragons.
"The thing that does bother me is… a certain group of people believe [video games] are deserving of less respect than books and film and that is why it’s singled out often."
Lawrence Walters, of the Walters Law Group in Longwood, Fla., who specializes in free speech issues, including video games, agreed with Boyd that proposed legislation in Connecticut pertaining to video games are "doomed to fail." He described the proposals as "kneejerk reactions."
"Guns and violent video games are the usual suspects in a tragedy like this," said Walters.
With regard to State Rep. DebraLee Hovey’s proposal to tax all rated M video games 10-percent, Walters said it was unconstitutional.
"It’s pretty clear case law. You can’t tax disfavored speech or expression from other forms of speech," explained Walters. "So you can’t impose a 10-percent tax against Hustler [magazine] just because [the state] didn’t like the erotic nature of the magazine."
Walters said the Brown decision prevents Harp’s proposal from going anywhere, leaving just the proposal for a task force as having a chance of passing in the legislature this session. But even that, he said, has already been done before and no link between video games and violence has materialized.
"I’ve heard people talk about how it’s obvious there’s a link," said Walters. "But just because someone did something before they shot up a school, doesn’t mean it’s the cause. That’s where the courts have demanded something along the lines of real science establishing real causation, and nobody has established a real study such as that…a statistical correlation with videogames and teenage violence."
A public hearing will take place Feb. 26 before the General Assembly’s Children Committee regarding Harp’s proposal limiting access to violent games in arcades.•