Charles A. Donovan: Game on, not over, for parental rights in our rudderless culture

By Charles A. Donovan

The Heritage Foundation

Published: Wednesday, July 6 2011 12:00 a.m. MDT

The Supreme Court dismayed parents across America in striking down California's ban on sales of ultra-violent video games to minors.

Many hail the 7-2 ruling as a victory for free speech and the First Amendment. But it's also one more message to parents that they must fend for their own families in an increasingly rudderless culture.

Legal scholars are sifting through the opinions and pointing out some inconsistencies among the justices. For liberals such as Justice Ruth Bader Ginsberg, for instance, our Constitution doesn't permit California to limit the sale to minors of "corrupting" video games depicting torture and rape. The Constitution does, however, permit laws that seek to limit the "corrupting" influence of political donations.

Interestingly, two frequent conservative allies on the court, Justices Clarence Thomas and Antonin Scalia, took different sides in the June 27 decision. Justice Stephen G. Breyer joined Thomas in voting to uphold the ban.

"Thomas argued that the original understanding of the First Amendment does not protect speech or expression to minors that their parents did not want them to receive," notes Todd Gaziano, director of the Center for Legal and Judicial Studies at The Heritage Foundation. "Justice Scalia takes him on, noting the critical distinction that the California law was enforced through criminal sanctions." Gaziano, understandably, declines to "referee that fight." Nor will parents be in a position to do so. But, like Justice Potter Stewart when it came to pornography, parents probably know unacceptably violent content for their children when they see it.

What can they do about it? The answer involves much more than technology and the ratings systems to which many video filters are moored.

Significantly, California's legislative ban was an attempt to draw a line that even the video game industry agrees does exist.

After all, the whole system of voluntary ratings for music and violent videos wasn't completely voluntary. It was a response by affected industries, after Al and Tipper Gore made their foray into this contentious zone, to ward off tougher legislative action and demonstrate that self-policing could work. With this maneuver, rocker Frank Zappa and others zapped federal measures on the subject. The Supreme Court ruling on the California law raises the question of what happens now that, to some degree, legislative action can't be used to cudgel commercial enterprises into showing respect for parents. More parents are likely to seek comprehensive, longer-term solutions like parental rights legislation and education reform.

The 7-2 margin signals this decision will stand for some time. That would only reinforce parents' conviction that in loco parentis — the legal doctrine recognizing that government and institutions may act in concert with parents to shield children — faces further erosion. Parents will have to do more of the heavy lifting themselves. Like ancient defenders of the castle keep, they not only will move to strengthen inner walls but to improve outer defenses.

The more technically savvy parents are, the more they know how inadequate inner walls such as the vaunted v-chip and other parental controls really are. Technology multiplies with astonishing rapidity.

Even the most adept mothers and fathers recognize that they trail their offspring in manipulative ingenuity. Not to mention the skills of their children's even savvier peers. Parents will strive to bolster the outer earthworks of the family fortress. They will insist on their right, which many see as a solemn duty, to guide the whole of their children's education down a different path from popular culture. Parental phenomena such as homeschooling and pressure for education choice will continue to grow. Jurists may not be able to find any legal distinction between a Grimm fairy tale and a level of play in the video game "Call of Duty: Modern Warfare II," where the operator sprays bullets around a civilian air terminal. Parents, however, perceive something even deeper — a moral difference. And they will act.

In a civic culture with widely shared norms, merchants aren't permitted to sell whatever they please to kids. Absent that common culture, parents have to work harder to build a family-friendly oasis. Game over? Hardly. On the next level of the culture wars, parents will defend their freedom to make crucial decisions in health and education.

They'll fight to keep their castles secure.

Charles A. Donovan is senior research fellow in the DeVos Center for Religion and Civil Society at the Heritage Foundation. Distributed by McClatchy-Tribune Information Services.

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