We Need a First Amendment to the First Amendment

 By Tom Cooper

Tom Cooper suggests that even the First Amendment might need to be amended in order to protect children from violent video games.

Photo: Luke Hayfield Photography

As a long-time supporter of the First Amendment, and as a professor and author, I understand the Supreme Court's 2011 decision not to "discriminate" against violent video games. When considering the Brown vs. Entertainment Merchants case from California, seven of the nine Supreme Court justices implied that the U. S. Government cannot on the one hand ban content in video games while on the other hand continue to permit similar content within movies, books, Web sites, television, and other media.  

However, speaking as a parent, and as an ethicist, I share the concerns of the two dissenting Supreme Court justices, Stephen Breyer and Clarence Thomas. To me it is significant that some children’s psychiatrists, such as Dr. Alvin Poussaint at Harvard Medical School, report that children exposed to extremely violent content may be traumatized.  Some have suffered long-term disturbing flashbacks and other ill effects.

It is often argued that the ESRB voluntary video game ratings system (http://www.esrb.org/) provides sufficient guidance for parents to determine which video games are appropriate. However, not all parents pay attention to or are swayed by ratings or have sufficient authority with their children to enforce viewing habits.   

If the First Amendment must be respected, so too must vulnerable children. So, to honor both, I believe we may need a "first amendment" to the First Amendment, an amendment which protects children from exposure to mature media content for which they are not prepared. Such an amendment would need to specify that, while the Federal Government  may not enact legislation restricting the freedom of the press (and the other freedoms protected by the First Amendment),  an exception to this basic law would pertain to the restriction of  specific forms of  public communication readily available to children.

Of course prevailing wisdom often has it that, since parents are the ultimate gate-keepers for their children, they should be the ones censoring the media, not the government.

Unfortunately, other social trends often make it likely that many children do not have parents who can and will protect them from unnecessary or harmful violence. More single-parent families, particularly when the parent must be out of the home much of the time for economic reasons, can result in more "latch-key kids" taking care of themselves.  While it is unlikely that abandoned orphans (“street children”) have the money for video games, many adults—married or not—who play video games are careless about leaving them accessible to untended children.

In short, we cannot expect parents and other care-givers to be the sole protective agents for children. Nor are churches and synagogues over-populated with adolescents. If we look to schools to protect children from violence, we must consider the increasing presence of guns, bullying, homicide, and other violence within schools themselves.

Some of those who introduced video game legislation in California suggested that the corporations developing and selling video games have established a predatory relationship with our youth. So even when parents and civic groups do take a strong stand against "slash, flash, clash, and trash for cash" entertainment, they become David  fighting Goliath when attempting to  create more protective legislation.

A number of scholars have considered Professor George Gerbner’s studies of the incidence of media entertainment violence a helpful tool for understanding some of its effects.   Gerbner noted that an addiction can develop to the point where viewers actually crave increased violence.  In the film The Killing Screens he used the terminology of drug dependency.  Gerbner also noted that Hollywood violence peddlers must "increase the dosage" to satisfy audiences.  For example, from Gerbner’s perspective, if the movie Rambo features, say, two hundred fatalities, then the sequel, Rambo II, must depict perhaps four hundred or more killings to meet audience expectations

Why should it be different for video games?  Interactive innovations have featured not only the opportunity to "kill" more imaginary human beings and demons, but also the means to do so in increasingly horrific and shocking ways. In Gerbner’s terms the dosage must be increased not only for the usual suspects, but also for larger and younger markets.

Some documentaries about entertainment violence such as Game Over and The Killing Screens have shown how military leaders have frequently used video games as training exercises to increase effectiveness in battle.  While many scholars have long debated whether such simulated violence is related to the real world and breeds imitation by children, I believe there can be no debate about whether an increasing climate of excessive violence is healthy.

For these and other reasons, it behooves us to carefully examine the recent Supreme Court decision about video games. We permit pornography in this country; but we do not permit children’s pornography.  We sanction the consumption of alcohol, but not by minors.  We allow adults to purchase guns, but not to bring them into our schools.  We are a sexually tolerant society, but not regarding pedophilia.

In short, given that there are exceptions to most rules, is it not our children who are, in both senses of the word, exceptional?  Isn’t it time to enact a first amendment to the First Amendment?

• Tom Cooper is Professor of Visual and Media Arts at Emerson College, co-publisher of Media Ethics and author of Fast Media/Media Fast (reviewed in this issue of Media Ethics). He may be contacted at  This email address is being protected from spambots. You need JavaScript enabled to view it.