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Hanna: Banning The Hedgehog

06/29/11 7:55AM By Cheryl Hanna
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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.

(HANNA) 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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