Hanna: Banning The Hedgehog

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(HOST) Earlier this week, the United States Supreme Court struck down a
California law that restricted the sale of violent video games to
minors. Commentator and Vermont Law School professor Cheryl Hanna
reviews the case and its similarities to a Vermont law.

My children finally showed some interest in my work when I mentioned
that the Supreme Court had discussed Sonic the Hedgehog, a video game
character, in its latest First Amendment decision. Heroes with a vicious
streak – from Looney Tune characters to Cinderella’s evil stepmother –
aren’t new to the childhood experience, but it’s not every day that
they’re referred to by the Court – as they were when it recently struck
down California’s ban on the sale of violent video games to minors
without parental consent.

The problem with California’s law,
said the Court, was that children were exposed to violent images all of
the time, from fairy tales to Saturday morning cartoons. There was no
compelling evidence that viewing such images somehow caused children to
act in violent or aggressive ways. And even if there were such evidence,
the law was under-inclusive because it failed to ban other media that
exposed children to violence. If you are going to ban Sonic, the Court
implied, you should consider banning Bugs Bunny and the Brothers Grimm
as well.

But, of course, the Court, or the public for that
matter, would never stand for such a broad law either, making it nearly
impossible for the state to regulate purely violent images, even those
targeted at children.

This was the second time in the past two
weeks that the Court took a state legislature to task for targeting an
industry that it didn’t like.

Just a few days before, the Court
was similarly critical of the Vermont legislature for banning drug
companies from accessing information about what medications doctors
prescribe. The companies use this information to send representatives to
the doctor’s office, armed with very detailed information about how
that doctor practices medicine. These sales representatives then use
this information to inform doctors about alternative drugs, including
more expansive brand named options.

However, just about everyone
else, from researchers to the media, have access to the same
information. Vermont’s law was targeted at a specific speaker – and you
can’t do that, said the Court, unless you have a really, really good
reason. Just as California couldn’t prove that playing violent video
games caused kids to be violent, Vermont couldn’t prove that keeping
otherwise truthful information from doctors protected their privacy or
lowered the cost of medical care.

It is true that the Court is
trending away from regulation and toward free speech, both when the
speaker is a political person, such as in the case of protestors and
military funerals, and when the speaker is a company. And neither
California nor Vermont’s cases were close decisions. That’s in part
because most members of the Court just don’t think humans are as
impressionable as law makers might think.

Maybe the Court’s
right, and maybe the Court’s wrong, but most certainly the Court’s not
likely to change. So for now, it’s parents who will have to ban their
kids from playing Sonic the Hedgehog games, and doctors who will have to
say no when drug companies come to call.

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