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