Earlier this year, free speech advocates, including CBLDF, won a victory with Brown v. EMA (formerly Schwarzennegger v. EMA), a Supreme Court decision that struck down a California law that violated the First Amendment and would have included violence among unprotected expression, alongside obscenity. Had the California law stood, it would have impinged upon the First Amendment rights of minors and their parents. It would have had additional repercussions, likely leading to the censorship of violence in other entertainment media, including comic books.
In a recent article for Media Law Monitor — Moral Panics, the First Amendment, and the Limits of Social Science — CBLDF General Counsel Robert Corn-Revere analyzed the Brown v. EMA decision, discussing the lack of scientific evidence that proponents for the regulation of violent speech claimed to have.
Corn-Revere addresses the lack of scientific evidence provided by the State of California in defending the law:
Noting that similar state video game laws had been rejected unanimously by federal courts, California argued not just that social science justified its regulations, but that it did not need to cite studies at all. Rather, the state claimed that it should be able to regulate games whenever the legislature rationally concluded that video games might be detrimental to the moral and ethical development of youth.
Such an approach may be fine when parents are choosing games for their children. And it is perfectly appropriate to use such value-based judgments when a pediatrician makes similar recommendations to patients. But it cuts against the grain of the First Amendment when such mandates are enforced by government decree. The Supreme Court reaffirmed in Brown that when Mom or Dad chooses which games are appropriate for the kids, it is called parenting; but when the government does so, it is called censorship.
Corn-Revere provides an in-depth analysis of the history of media censorship, discussing comic book censorship at length. He writes about the lack of scientific evidence against violent speech in various media, including the “evidence” found in Fredric Wertham’s Seduction of the Innocent:
Fredric Wertham’s Seduction of the Innocent has been classified as “the archetypal reaction to a new mass medium,” with its denunciation of comics as “morally contagious and sexually dangerous.” Yet, despite its Comstockian prose and its unabashed purpose to further the author’s anti-comic book crusade, the book was touted as a work of “science.” Due to its purportedly authoritative nature, Wertham’s book was tremendously influential, not just in the United States, but in Canada and Europe as well.But Seduction of the Innocent was anything but scientific, and its findings have been thoroughly discredited. It consisted of random, undocumented, and unverifiable case studies of children who supposedly had been harmed by reading comic books. The examples were “carefully selected to support Wertham’s conclusions about comic books,” which were presented through the dramatic reconstruction of contrived dialogue. Scholarly critiques noted that the book lacked any scientifically gathered research data or systematic inventory of comic book content and concluded that, “[w]ithout such an inventory, the conjectures are biased, unreliable, and useless.”
Such evident weaknesses did not prevent Wertham from presenting his conclusions as if they represented a scientific consensus, despite the fact that “most professional social workers, psychologists, sociologists, and criminologists denied any direct link between mass media and delinquency.” He confidently testified before Congress that his book provided “incontrovertible evidence of the pernicious influences on youth of crime comic books” and that “on this subject there is practically no controversy.” He made such claims despite data that had been presented to the Senate subcommittee showing that juvenile delinquency actually declined during the years that “crime comics” increased in popularity.
After further discussion of pseudoscience-fueled moral panic, Corn-Revere concludes:
All told, the arguments California made to support its video game restrictions threatened to undo more basic First Amendment law than any single case in living memory. The state argued that new interactive technologies should get less constitutional protection, that the Court can create new categories of unprotected speech, that children lack constitutional rights, and that legislatures can justify censorship based on a “rational basis” whim (otherwise known as legislative “findings”). But the Supreme Court held firm, issuing an opinion that, as former Justice David Souter once put it, keeps the “starch in the standards.”
You can read all of Corn-Revere’s analysis here.