Moral Panics, the First Amendment, and the Limits of Social Science Robert Corn-Revere

The Supreme Court appeared to It noted, as have other courts, that regulatory enthusiasts ignores a more show social psychology no respect— nearly all the research is based on fundamental flaw in what California no respect at all—when in Brown v. correlation, not causation, and that was trying to achieve. Noting that Entertainment Merchants Association the studies “suffer from significant, similar state video game laws had it struck down a California law that admitted flaws in methodology.”1 been rejected unanimously by federal restricted the sale or rental of vio- More to the point, correlation, even courts, California argued not just that lence-themed video games to minors. where found, is insufficient to support social science justified its regulations, But the decision was not a show of the regulations. Research positing even but that it did not need to cite studies disrespect. Instead, the Court simply the most significant findings shows at all. Rather, the state claimed that recognized that correlational data are “miniscule real-world effects” that it should be able to regulate games insufficient to overcome basic First “are both small and indistinguish- whenever the legislature rationally Amendment principles. able from effects produced by other concluded that video games might be A majority of the Court found that media.”2 Justice Scalia singled out detrimental to the moral and ethical social science data purporting to show one prominent researcher in the field, development of youth. harmful media effects on minors do who he noted admits that “the same Such an approach may be fine not trump established constitutional effects have been found when children when parents are choosing games rights. This finding is particularly watch cartoons starring Bugs Bunny for their children. And it is perfectly pertinent in a historical context of or the Road Runner . . . or even when appropriate to use such value-based successive panics about the latest they play video games like Sonic the judgments when a pediatrician makes scourge affecting our children, and in Hedgehog that are rated ‘E’ (appropri- similar recommendations to patients. a tradition where scientific “proof” ate for all ages) . . . or even when they But it cuts against the grain of the merges with moralistic advocacy. The ‘vie[w] a picture of a gun.’”3 First Amendment when such man- true importance of Brown, however, Other justices were not so skeptical. dates are enforced by government is its reaffirmation of bedrock First Justice Breyer dissented, claiming that decree. The Supreme Court reaffirmed Amendment concepts, i.e., that new social scientists “have found causal ev- in Brown that when Mom or Dad communications technologies are idence that playing these games results chooses which games are appropriate constitutionally protected, that the in harm.”4 He attached to his dissent for the kids, it is called parenting; but Court will not sanction new catego- fifteen pages of appendices prepared when the government does so, it is ries of “unprotected” expression, that with the assistance of the Supreme called censorship. children have rights, and that the gov- Court library, listing studies with both ernment has a heavy burden of proof positive and negative findings. Justice Same as It Ever Was . . . when it tries to restrict speech. Alito, joined by Chief Justice Roberts, The Court put the controversy over concurred with the majority opinion. video games into perspective by consid- A Failure of Proof But they expressed concern about the ering it in historical context. It found Justice Antonin Scalia’s majority potential adverse impact of the games, that “California’s effort to regulate vio- opinion in Brown surveyed studies reasoning that new interactive tech- lent video games is the latest episode in that purport to show a connection be- nologies may not be comparable to a long series of failed attempts to cen- tween exposure to violent video games traditional media. Nevertheless, they sor violent entertainment for minors.”6 and harmful effects on children. The joined in the outcome of the decision, And indeed it is. The California law opinion explained why the research concluding that the California law was represents a long tradition of suppress- has been rejected as a basis for regula- unconstitutionally vague.5 ing media popular among the young. tion by every court to consider it. These differences of opinion among These recurring campaigns are typi- the justices led some to speculate that fied by exaggerated claims of adverse there may be hope yet for new video effects of popular culture on youth Robert Corn-Revere practices First Amend- game regulations. With better social based on pseudoscientific assertions of ment and communications law at Davis science data and a more narrowly harm that are little more than thinly Wright Tremaine LLP in Washington, D.C. drafted law, according to this view, the veiled moral or editorial preferences. This article is adapted from an amicus brief states or the federal government may Such censorship crusades have been he filed in Brown v. Entertainment Mer- one day police the recreational choices mounted against dime novels, ragtime chants Association on behalf of the Comic of children. music, cinema, comic books, television, Book Legal Defense Fund. This “glass half full” attitude among and, now, video games.

Published in Communications Lawyer, Volume 28, Number 3, November 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. This phenomenon even has a name substances, and in December 1933, a children’s morals and behavior.21 A among social scientists; it is called a Washington State congressman intro- 1907 Chicago Tribune editorial called “moral panic” in which duced House Bill 194 in the legislature movies “schools of crime where mur- to empower the governor to impose a ders, robberies, and holdups are illus- [a] condition, episode, person or ban if it was determined that “our peo- trated,” and it called on city authori- group of persons emerges to become ple are becoming dangerously dement- ties to “suppress them at once.”22 defined as a threat to societal values ed, confused, distracted or bewildered Given such strong editorial endorse- and interests; its nature is presented by jazz music.” It also provided that ment, it is not surprising that Chicago in a stylized and stereotypical fash- those convicted of being “jazzily intoxi- adopted the nation’s first film censor- ion by the mass media; the moral cated shall go before the Superior Court ship ordinance in 1907, requiring barricades are manned by editors, and be sent to an insane asylum.”14 exhibitors to obtain a police permit bishops, politicians and other right- The moral panic over jazz was before any movie could be shown.23 thinking people; [and] socially- captured perfectly in lyrics from The Other cities soon followed suit. In 1910, accredited experts pronounce Music Man: a committee in Cleveland reviewed their diagnoses and solutions.7 some 250 films and declared that 40 One fine night, they leave the pool percent of them were unfit for children Campaigns to protect children often hall, headin’ for the dance at the “because they focused on crime, drunk- are the product of “general anxieties Arm’ry! Libertine men and Scarlet enness, and loose morals.”24 By 1926, about the future direction of society,” women! And Rag-time, shameless seven states and at least 100 municipali- but, as a multidisciplinary government music that’ll grab your son and your ties imposed pre-exhibition censorship report of the UK government found, daughter with the arms of a jungle on movies.25 “they can also be inflamed and manip- animal instink! Mass-staria!15 In the post-war years between 1948 ulated by those with much broader po- and 1953, various crusaders stepped litical, moral or religious motivations.”8 Such concerns foreshadowed later forward to blame an asserted increase Such cycles of outrage can be campaigns against music, but by then, in juvenile delinquency on “the pre- traced to early claims that “a very the critics had forgotten how foolish occupation with violence and horror large majority” of those who turn those efforts looked in retrospect. Re- fostered by the wide distribution of bad “may trace the commencement sponding to demands like this, NBC sex, crime, and horror comic books.”26 of their career in crime to their atten- in 1940 banned from the radio more Civic groups such as the PTA and dance in Penny Theatres.”9 Likewise, than 140 songs because they allegedly the National Institute of Municipal “Penny Dreadfuls” began to appear “encouraged a disrespect for virgin- Law Officers denounced comics, and in England and continental Europe in ity, mocked marriage, and encouraged ordinances were proposed in cities the mid-nineteenth century. Forerun- sexual promiscuity.” Duke Ellington’s across the United States. In addition, ner to the American dime novels, these The Mooche was blamed for inciting public burnings of comic books were mass-produced serialized stories about rape, and only the instrumental ver- organized.27 As a tragic irony, some the exploits of Gothic villains, pirates, sion of Cole Porter’s Love for Sale of the public burnings were staged highwaymen, thieves, and murderers could be aired.16 not long after the publication of Ray were designed to appeal to a youthful This drama played out again a Bradbury’s dystopian novel Fahrenheit and mass audience. Penny Dreadfuls couple of decades later in a two-year 451, in which firemen had the job of were scapegoated for provoking the investigation by the Federal Com- burning books.28 commission of juvenile crimes ranging munications Commission and six FBI By 1949, laws to regulate comic from theft to murder, and by the 1890s field offices into the supposedly cor- books, mostly designed to ban the “among street boys, reading had be- rupting lyrics of the song Louie Louie sale of crime comics to minors, were come an almost criminal pursuit.”10 by The Kingsmen.17 The FBI finally pending in fourteen states, and eventu- In the United States, such claims concluded in 1966 that the song’s lyr- ally at least fifty U.S. cities would at- were reprised in Anthony Comstock’s ics were unintelligible (and therefore tempt to regulate their sale.29 Various assertions that dime novels were “the not obscene).18 Yet these findings did measures were adopted, including the inspiration for all the antisocial be- not prevent a middle school principal circulation of blacklists by police or havior exhibited by the youth of the in 2005 from banning a marching local prosecutors as part of organized day.”11 Another early American target band’s instrumental performance out programs “to drive certain publica- of moralistic fervor was ragtime mu- of concern for the song’s supposedly tions from [the] community.” In some sic, which was castigated in 1899 as “sexually explicit lyrics.”19 jurisdictions, lists were derived based “vulgar, filthy and suggestive music” The advent of cinema likewise on recommendations from interested that should be “suppressed by press “provided all the necessary ingredients organizations, while other communi- and pulpit.”12 In a 1914 call to arms for a ‘moral panic’” with its atten- ties established advisory committees against jazz, the Musical Observer dant “full-blown conflict over moral or “literature commissions” to identify urged its readers to “take a united values.”20 Movies with crime stories suspect works.30 Such methods proved stand against the Ragtime Evil as we and depictions of cinematic violence to be highly effective, “establishing a would against bad literature.”13 would lead politicians, religious lead- virtual censorship over reading matter Opponents compared the music ers, and social reformers to condemn by keeping it from reaching newsstands to alcohol and other intoxicating the influence of motion pictures on or by withdrawing it afterwards.”31

Published in Communications Lawyer, Volume 28, Number 3, November 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. In 1954, the Senate Judiciary Com- degeneracy, bestiality, and horror.”38 honest about his animating concerns. mittee convened a special Subcom- Ultimately, however, the commit- He wrote that “Satan lays the snare, mittee to Investigate Juvenile Delin- tee, to its credit, rejected the notion and children are his victims.” His over- quency in the United States and held of federal censorship as “totally out riding goal was to “awaken thought hearings on the topic of comic books of keeping with our basic American upon the subject of Evil Reading.” and juvenile delinquency.32 The star concepts of a free press operating in Comstock’s ultimate mission was to witness was psychiatrist Dr. Fredric a free land for a free people.”39 In- save children from the wages of sin.47 Wertham, a vociferous anti-comic stead, it endorsed a strict system of The purposes of social reformers book crusader. His 1954 book Seduc- self-regulation. did not change in the moral panics of tion of the Innocent became Exhibit A Wertham failed to obtain the fed- the twentieth century, but the crusad- for the case against comic books.33 eral legislation he advocated and was ers began to dress up their moralistic Wertham was no stranger to the unable to secure passage of the New arguments with the trappings of sci- florid rhetoric of the moral crusader. York censorship bill. But he nonethe- ence. In the well-rehearsed script of less was credited with persuading a the typical moral panic, however, sci- number of states and cities to adopt ence has been used less as a tool for [T]he language such laws.40 His actions and writ- understanding than as currency to be ings fueled a national movement to exchanged for political leverage. As a describing . . . video get comic books off the shelves and result, the policy debates in this area triggered police action against comic are a mélange of social science mixed game violence is little books in more than fifty cities.41 And, with politics and advocacy, and rarely although Wertham was deeply disap- is there a clear dividing line between changed from the moral pointed in the voluntary industry code the researchers and the advocates. that was adopted to forestall legisla- The debate over media violence has panics of yesteryear. tion, as a practical matter, the national followed the standard script, domi- system of informal censorship that re- nated by “reactionary rhetoric, flawed Not to be outdone by his predecessor, sulted had a profound chilling effect.42 research, and distorted accounts of Anthony Comstock, he proclaimed, So goes the cycle of outrage in the legitimate scientific studies.”48 “Hitler was a beginner compared to typical moral panic. “Whenever the Some scholars have warned that the comic-book industry.”34 He pos- introduction of a new mass medium such misuse of social science can do ited that “as long as the crime comic is defined as a threat to the young, we great damage when it is “weak in books industry exists in its present can expect a campaign by adults to methodology, but strong in ideology” forms, there are no secure homes,” and regulate, ban or censor, followed by a and that in such cases “social sci- he took an exceedingly broad view of lessening of interest until the appear- ence runs the risk of becoming little which comics fell into that category. ance of a new medium reopens public more than ‘opinion with numbers.’”49 For example, he described Superman debate.”43 Despite this well-trodden Criminologist David Gauntlett de- comics as “particularly injurious to path, the reaction carries with it “an scribed this “opportunistic mixing of the ethical development of children” intrinsic historical amnesia.”44 “Every concerns about the roots of violence for engendering fantasies of “sadistic new panic develops as if it were the with political reservations about the joy in seeing people punished over and first time such issues were debated in content of screen media” as “a lazy over again” and for teaching “com- public and yet the debates are strik- form of propaganda.” Those who plete contempt of the police.”35 ingly similar.”45At the same time, “pre- exploit such moral panics are dubbed Wertham previously had lobbied occupation with the latest media fad “moral entrepreneurs.”50 the State of New York to adopt a immediately relegates older media to The panic over film censorship “public health” law prohibiting the the shadows of acceptance.”46 provides a clear example of the dis- sale and display of crime comics to Repeating this pattern, the language tortion of scientific claims in service children under the age of fifteen, de- describing media and video game vio- of a political objective. In 1933, the scribing such materials as “the cause lence is little changed from the moral Motion Picture Research Council of a psychological mutilation of chil- panics of yesteryear. Taking a cue from published an exhaustive nine-volume dren.”36 The legislature passed the pro- Comstock and Wertham, supporters scholarly study on the effects of mov- posed bill in March 1952, but Gover- of regulation routinely cite examples of ies on American children, commonly nor Thomas E. Dewey vetoed it. Dew- games they consider the most lurid and known as the Payne Fund studies. ey’s veto memorandum said that the assert broad claims about the adverse The project was undertaken with a bill violated the First Amendment.37 effects of such materials on youth. goal of discrediting movies, but the At the federal level, the Senate sub- researchers actually reached more nu- committee’s report adopted Wertham’s Back off, Man—I’m a Scientist anced conclusions that were “about rhetorical style and warned that crime While all moral crusaders over the de- one-third unfavorable to the movies, and horror comic books “offer short cades have sought to protect children about one-third favorable, and about courses in murder, mayhem, robbery, from bad influences that they claimed one-third neutral.”51 Unfortunately, rape, cannibalism, carnage, necro- would cause them to commit crimes the researchers’ reservations were for- philia, sex, sadism, masochism, and (or at least behave disrespectfully), gotten as their work became part of virtually every other form of crime, Anthony Comstock, at least, was the policy debates.

Published in Communications Lawyer, Volume 28, Number 3, November 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Not content to rely on the more provided “incontrovertible evidence of Most importantly, real-world re- dryly academic analysis, the Council the pernicious influences on youth of ductions in crime and violence con- also commissioned a book to sum- crime comic books” and that “on this tradict claims of widespread effects marize the research for popular subject there is practically no contro- of video games on minors. During the consumption.52 The resulting work versy.”61 He made such claims despite past twenty years, “as video games was more a polemic than an accurate data that had been presented to the became increasingly popular, and as digest of the study. “It twisted conclu- Senate subcommittee showing that technology allowed ever more detailed sions, omitted facts, and used inflam- juvenile delinquency actually declined depictions of violence, youth violence matory language to conclude that chil- during the years that “crime comics” rates have plunged—not only in the dren’s mental attitudes were changed increased in popularity.62 United States, but in most industrial- by their viewing choices” and that This experience is virtually identi- ized nations.”71 According to FBI films were “responsible for juvenile de- cal to current claims about media statistics, since 1995, the juvenile crime linquency, promiscuity, and disrespect and video game violence. Channel- rate has dropped by 36 percent, and to parents.” But as such things go, “it ing Wertham, advocates of increased the juvenile murder rate has plum- was the popularized version that stuck regulation frequently have made the meted by 62 percent.72 Antiviolence in the minds of policymakers.”53 claim that “the scientific debate is . . . crusaders in the past frequently would The comic book panic followed over” about the impact of fictional- cite rising crime rates in the 1970s and the same pattern. Fredric Wertham’s ized violence.63 Such present-day 1980s as proof of their media effects Seduction of the Innocent has been crusaders are prone to extravagant theories. But the current decline in classified as “the archetypal reac- rhetoric, comparing their theories to crime “has passed without comment tion to a new mass medium,” with its such things as the link between smok- by many of the same scholars.”73 denunciation of comics as “morally ing and health and asserting that to Given the persistent refusal of contagious and sexually dangerous.”54 dispute their conclusions is to “argue real-world experience to corroborate Yet, despite its Comstockian prose against gravity.”64 However, research- their theories, proponents of media and its unabashed purpose to further ers in the field who have not signed violence regulation have tried to have the author’s anti-comic book crusade, on to this faux consensus caution that it both ways. They argue that social the book was touted as a work of such “[g]randiose claims demand in- science research is sufficient to support “science.”55 Due to its purportedly tense skeptical scrutiny.”65 restrictions on speech, but they also authoritative nature, Wertham’s book Contrary to the assertions of regu- claim that the government should not was tremendously influential, not just latory advocates, there is nothing ap- be required to present such data at all. in the United States, but in Canada proaching a scientific consensus on the They argue that courts should defer and Europe as well.56 asserted link between electronic media to legislative judgments about which But Seduction of the Innocent or video games and violent behavior.66 games should be censored to protect was anything but scientific, and its Additionally, legislative endorsements the “ethical and moral development” findings have been thoroughly dis- by various professional associations of children. Reduced to their essence, credited. It consisted of random, have not been based on careful or in- arguments favoring the regulation of undocumented, and unverifiable case depth reviews of the literature.67 violence-themed games are little more studies of children who supposedly Interdisciplinary reviews have than a call to return to the age of An- had been harmed by reading comic found “long-running and often heated thony Comstock, in which the govern- books.57 The examples were “care- debates among researchers on the ment could ban literature in order to fully selected to support Wertham’s issue of media effects” about such save America’s youth from sin. conclusions about comic books,” fundamental issues as “how the key which were presented through the questions are to be framed, what What’s Law Got to Do with It? dramatic reconstruction of contrived might count as an answer, and what None of this is to suggest that parents dialogue.58 Scholarly critiques noted the implications of these answers are not right to be concerned if their that the book lacked any scientifically might be in terms of what should children want to play games that they gathered research data or systematic be done.”68 In particular, there is a believe reinforce poor values. The Su- inventory of comic book content and “‘stand-off’ between researchers in preme Court in Brown acknowledged concluded that, “[w]ithout such an the tradition of psychological ef- that some violent games may raise inventory, the conjectures are biased, fects research—which is particularly problems such that “perhaps none of unreliable, and useless.”59 prominent in the United States—and us would allow our own children to Such evident weaknesses did not researchers within disciplines such as play them.”74 But it also confirmed prevent Wertham from presenting sociology, anthropology and cultural that it could not interpret the law his conclusions as if they represented studies.”69 Looking at the issue more based on what the justices may believe a scientific consensus, despite the broadly, the UK government’s recent “parents ought to want” for their fact that “most professional social review of the media effects literature children.75 Justice Scalia’s opinion workers, psychologists, sociologists, found significant disagreement among for the Court observed that there are and criminologists denied any di- scholars and concluded that the evi- numerous more serious problems that rect link between mass media and dence of a causal link between violent cannot be addressed by governmen- delinquency.”60 He confidently testi- media content and violent behavior to tal restriction of free expression. For fied before Congress that his book be “weak and inadequate.”70 example, the Court has held that the

Published in Communications Lawyer, Volume 28, Number 3, November 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. government cannot prohibit expres- 3. Id. at 2739 (emphasis in original). note 26, at 495–96. sion encouraging anti-Semitism, 4. Id. at 2768 (Breyer, J., dissenting) 31. Id. at 496. advocating political philosophy hostile (emphasis in original). 32. Juvenile Delinquency (Comic to the Constitution, or encouraging 5. Id. at 2746 (Alito, J., concurring). Books): Hearings Before the S. Subcomm. disrespect for the American flag.76 In 6. Id. at 2741. on Juvenile Delinquency, 83d Cong., 2d this case, Brown restated the funda- 7. Stanley Cohen, Folk Devils and Sess. (Apr. 21–22 and June 24, 1954) (here- mental First Amendment principle Moral Panics 1 (3d ed. 2002). inafter Senate Hearings). that “esthetic and moral judgments 8. U.K. Dep’t for Children, Schools 33. See Fredric Wertham, Seduction of about art and literature . . . are for & Families & Dep’t for Culture, Media the Innocent (1954); Amy Kiste Nyberg, the individual to make, not for the & Sport, The Impact of the Commercial Seal of Approval: The History of the Government to decree, even with the World on Children’s Wellbeing—Report Comics Code 50 (1998) (Wertham’s book mandate or approval of a majority.”77 of an Independent Assessment 25 (Dec. was the “primer of the American cam- Ultimately, Brown v. EMA was 2009), available at www.education.gov.uk/ paign” against comics). about the preservation of hard-won publications/standard/publicationDetail/ 34. Senate Hearings, supra note 32, at 95. First Amendment rules that had been Page1/DCSF-00669-2009. 35. Id. at 84, 86. established in response to earlier twen- 9. James Grant, Sketches in London 36. Springhall, supra note 9, at 132. tieth century moral panics. In striking (1838) (quoted in John Springhall, Youth, 37. See People v. Bookcase, Inc., 201 down efforts to ban the distribution Popular Culture and Moral Panics 9 N.E.2d 14, 15–16 (N.Y. 1964). of crime magazines and comic books (1998)). 38. S. Rep. No. 84-62, at 7 (1955). to minors more than sixty years ago, 10. Springhall, supra note 9, at 38–58, 39. Id. at 23. the Court found it is difficult to distin- 75, 93. 40. Blanchard, supra note 11, at 789; guish politics from entertainment and 11. Margaret A. Blanchard, The Ameri- Kutner & Olson, supra note 21, at 50; dangerous to try. It therefore held that can Urge to Censor: Freedom of Expression Springhall, supra note 9, at 140. such publications “are as much en- versus the Desire to Sanitize Society—From 41. Nyberg, supra note 33, at 34. titled to the protection of free speech Anthony Comstock to 2 Live Crew, 33 Wm. 42. The comics code devastated the as the best of literature.”78 During the & Mary L. Rev. 757 (1992). industry. Entire categories, such as horror same time period, the Court invalidat- 12. John E. Semonche, Censoring Sex: comics, were terminated. Although not ed censorship of motion pictures, not- Historical Journey Through American entirely due to the new content code, the ing that each medium may “present Media 144 (2007). number of comic book titles that were its own particular problems,” but “the 13. See, e.g., Peter Blecha, Taboo published dropped by 40 percent, from basic principles of freedom of speech Tunes: A History of Banned Bands & around 500 in 1952 to approximately and the press, like the First Amend- Censored Songs 17 (2004). 300 in 1955. Springhall, supra note 9, at ment’s command, do not vary.”79 14. Id. at 23. 140–41. In 1955, for first time since the All told, the arguments Califor- 15. Meredith Willson, Ya Got Trouble, business began, no new publishers entered nia made to support its video game The Music Man (1957). the comic book market. Nyberg, supra restrictions threatened to undo more 16. Blanchard, supra note 11, at 824. note 33, at 124–25. basic First Amendment law than any 17. See Eric Predoehl, The FBI In- 43. Springhall, supra note 9, at 7. single case in living memory. The state vestigation of the Song “Louie Louie” 44. Kirsten Drotner, Modernity and argued that new interactive technolo- (1984) (collection of FBI reports obtained Media Panics, in Media Cultures: Reap- gies should get less constitutional pro- through FOIA request) (copies available praising Transnational Media 52 (Michael tection, that the Court can create new from author). Skovmand & Kim Christian Schroder eds., categories of unprotected speech, that 18. See Blecha, supra note 13, at 97–100. 1992). children lack constitutional rights, and 19. Semonche, supra note 12, at 138–42. 45. Id.; Springhall, supra note 9, at 7. that legislatures can justify censor- 20. Laura Wittern-Keller, Freedom of 46. Drotner, supra note 44, at 52. ship based on a “rational basis” whim the Screen 18 (2008). 47. Anthony Comstock, Traps for the (otherwise known as legislative “find- 21. Lawrence Kutner & Cheryl K. Ol- Young 5, 9, 239 (Robert H. Bremner ed., ings”). But the Supreme Court held son, Grand Theft Childhood 38 (2008). John Harvard Library 1967) (1993). firm, issuing an opinion that, as for- 22. Blanchard, supra note 11, at 761. 48. See, e.g., David Trend, The Myth of mer Justice David Souter once put it, 23. Id. Media Violence 45–49 (2007). keeps the “starch in the standards.”80 24. Id. at 763. 49. Christopher J. Ferguson & Cheryl In the end, Brown v. EMA was not 25. Wittern-Keller, supra note 20, at 22, K. Olson, The Supreme Court and Video about whether the Court respects the 30. Game Violence: Will Regulation Be Worth work of social scientists; it was about 26. Note, Regulation of Comic Books, the Costs to the First Amendment?, Crimi- the level of respect it has for the con- 68 Harv. L. Rev. 489, 489–90 (Jan. 1955). nologist, July/Aug. 2010, at 19–20. stitutional values embodied in the 27. David Hajdu, The Ten-Cent Plague 50. David Gauntlett, Moving Experi- First Amendment. 143–53 (2008); Springhall, supra note 9, at ences: Media Effects and Beyond 130–35, 130. 147 (2d ed. 2005). Endnotes 28. Hajdu, supra note 27, at 303–04. 51. Children and the Movies: Media 1. Brown v. Entm’t Merchs. Ass’n, 131 29. Id. at 150; Kutner & Olson, supra Influence and the Payne Fund Controversy S. Ct. 2729, 2738–39 (2011). note 21, at 50. 104 (Garth S. Jowett et al. eds., 1996). See 2. Id. 30. Regulation of Comic Books, supra Wittern-Keller, supra note 20, at 58.