Now that the current session of the US Supreme Court is over, the blogosphere is full of stories and analyses. Most of the decisions were not aligned with sustainability, creating greater inequalities and tipping the balance of “rights” further toward the corporate construct of a person. Kind of insidious silliness. Only people can speak. But one recent case, *Brown v. Entertainment Merchants Association*, bears on what I have been writing about.
The summary follows:
> Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.
> Held:�The Act does not comport with the First Amendment. Pp.�2-18.
The gist is that the Court found that the sale of violent video games could not be restricted on Constitutional grounds. The legal twists and turns are beyond my ken, but that is not what I want to discuss. Judge Breyer argued in his dissent that concern for the children should trump concern over restrain on speech. He wrote;
> When the military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose. But California argues that when the teaching features of video games are put to less desirable ends, harm can ensue. In particular, extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than can typically passive media, such as books or films or television programs.
Breyer recognized that involved action is very different from passive exposure to the same scenes of violence. Judge Alito agreed with the majority on the basis of legal technicalities, but disagrees with the central theme that violent video games are no different from reading a violent story. He writes;
> In the view of the Court, all those concerned about the effects of violent video games–federal and state legislators, educators, social scientists, and parents–are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in “kind” from reading a description of violence in a work of literature.
> �����The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.
The justices are operating on the wrong model of human cognition and action. To them there is no different between a violent scenario depicted in a book and the identical one enacted in a video game. The same facts are learned and the logical response would be the same. A child would be no more inclined toward or away from violence by playing the game than reading the book. The model of action and cognition I believe to be more apt for describing and understanding human nature and behavior is that of Humberto Maturana, a biologist or the philosophical model of Martin Heidegger. Both argue, on different but congruent theories, that we learn by doing, not by acquiring knowledge which we then put to work by the computer in our mind.
Maturana (and Varela) says it very simply, “All doing is knowing, and all knowing is doing.” Reading a book is an act (doing), but the context is that of theory. There is no violence in the room, only on the pages of the book. What we read goes into the brain as a context-free set of information to be recalled later. Its presence in the body is entirely distinct from whatever causes violent acts at some later time.
Acting out violence creates structures in the cognitive system that can be triggered by future events. Breyer’s point that video games “often teaching them to be violently aggressive in life” is correct. I found Alito’s arguments very detailed on this topic and worth quoting here. I have removed the footnote and legal references. They are available in the [full opinion](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=08-1448).
> Finally, the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. Any assessment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future.
> �����Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage. Many of the games already on the market can produce high definition images, and it is predicted that it will not be long before video-game images will be seen in three dimensions. It is also forecast that video games will soon provide sensory feedback. By wearing a special vest or other device, a player will be able to experience physical sensations supposedly felt by a character on the screen. Some amici who support respondents foresee the day when “�’virtual-reality shoot-’em-ups’�” will allow children to “�’actually feel the splatting blood from the blown-off head’�” of a victim.
> �����Persons who play video games also have an unprecedented ability to participate in the events that take place in the virtual worlds that these games create. Players can create their own video-game characters and can use photos to produce characters that closely resemble actual people. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course of the action in the game. In addition, the means by which players control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform. For example, a player who wants a video-game character to swing a baseball bat–either to hit a ball or smash a skull–could bring that about by simulating the motion of actually swinging a bat.
> �����These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed.
> �����In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.
> �����It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.
> �����If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence. [Let me add that if the teens were not troubled at the start of their game-playing, they might well be when they are done.]
> �����The Court is untroubled by this possibility. According to the Court, the “interactive” nature of video games is “nothing new” because “all literature is interactive.” Disagreeing with this assessment, the International Game Developers Association (IGDA)–a group that presumably understands the nature of video games and that supports respondents–tells us that video games are “far more concretely interactive.”
> �����It is certainly true, as the Court notes, that “�'[l]it-erature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’�” But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.
> �����When all the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.
I would say the court acts incorrectly, not merely prematurely, because their model of human cognition and behavior is inadequate to explain what we can observe. This error is similar to the errors about the nature of reason or rationality I have been writing about. And like these errors has serious implications for sustainability or for societal well-being in general. By ignoring the context in which we live, the justices have only added to the perversion, not protection, of the vision of the Founding Fathers. We cannot act justly and wisely using “knowledge” that fails to fits the realities of the very different world we live in today, and fails to accept new understanding about how the world works, including the humans that inhabit it.
One last point. We have here another case where technology ceases simply to be a useful tool and shapes the worldview of those using it. Just like the tendency to see a tree as a source for lumber without regard for its intrinsic existence and value, immersion in this technology of violence may turn people into mere targets to be eliminated for a few points.