- The Washington Times - Saturday, January 8, 2005

It is November 22, 1963. You are Lee Harvey Oswald. You are in the Texas School Book Depository. And you are taking aim at President Kennedy.

That is the sickening premise of “JFK Reloaded,” a video game any kid with $9.99 and an Internet hookup can purchase and play. It was also the last straw for Illinois Gov. Rod Blagojevich, a Democrat. “I watched that, and I felt a great deal of outrage and contempt, and thought to myself ‘someone ought to do something about that,’ ” Mr. Blagojevich told ABC News last month.

Mr. Blagojevich, a liberal, is now proposing legislation in Illinois that deserves support from conservatives nationwide. It bans distribution, sale and rental of graphically violent and sexually explicit videogames to children under 18. Merchants who provide such games directly to kids — but not indirectly through their parents — would be guilty of a misdemeanor punishable by a $5,000 fine or up to one year in jail.

Mr. Blagojevich’s proposal is already under fire from those who argue the First Amendment protects a “right” to peddle violence to children.

In a Chicago Tribune op-ed, Clay Calvert, co-director of the Pennsylvania Center for the First Amendment, argues the proposal “gives short shrift to freedom of expression and the reality that legal precedent weighs strongly against the constitutionality of measures restricting the sale of violence.”

In 2003, the Missouri-based U.S. 8th Circuit Court of Appeals shot down a St. Louis ordinance similar to Mr. Blagojevich’s proposal. In 2004, a federal court tossed out a Washington state law banning the sale to minors of video games depicting graphic violence toward police. But Mr. Calvert especially cited a 2001 precedent set by Judge Richard Posner of the Illinois-based U.S. 7th Circuit Court of Appeals. Judge Posner — unfortunately, a Reagan appointee — wrote for a three-judge panel that overturned an Indianapolis law prohibiting video parlors from allowing children to use graphically violent video games unless accompanied by a parent.

“Posner wrote in that case, American Amusement Machine Association vs. Kendrick, that it is not just video-game makers, retailers and distributors who have free-speech interests at stake,” said Mr. Calvert. “Posner observed that ‘children have First Amendment rights,’ adding that ‘to shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”

In his opinion, Judge Posner explained what he sees as the First Amendment value to children of “Ultimate Mortal Kombat 3,” a game in which a woman armed with a “huge” sword duels with — and invariably kills — similarly armed men. “[T]he game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men,” said Judge Posner. “It thus has a message, even an ‘ideology,’ just as books and movies do.” The bad guys, in this judge’s view, are not the merchants selling violent games to children, but the parents trying to stop them.

Insisting parents accompany children to the merchants’ parlors, ruled Judge Posner, put too much of a burden on the First Amendment right of children to receive the message — or “ideology” — purveyed by the makers of violent games.

“Many parents are too busy to accompany their child to a game room,” he says. “Most teenagers would be deterred from playing these games if they had to be accompanied by mom … and conditioning a minor’s First Amendment rights on parental consent of this nature is a curtailment of those rights.”

But Judge Posner did open the window slightly for alternative judgments against even more graphic games than those under question in Indianapolis. “We have emphasized the ‘literary’ character of the games in the record and the unrealistic appearance of their ‘graphic’ violence,” he said. “If the games used actors and simulated real death and mutilation convincingly, or if the games lacked any storyline and were merely animated shooting galleries (as several of the games in the record appear to be), a more narrowly drawn ordinance might survive a constitutional challenge.”

For now, however, Judge Posner’s precedent is the law of the land in Indiana, Illinois and Wisconsin, all in the 7th Circuit.

Aristotle believed education means teaching children to love what is right and hate what is wrong. Violent video games do just the opposite. Were Judge Posner’s basic reasoning upheld by the Supreme Court, American parents would not have the authority to stop a virtual Oswald from teaching their kids how to assassinate a president — or a virtual madman from instructing them in mass murder.

Here’s hoping Illinois’ Democratic governor ultimately prevails in his moral combat with the precedent set by a Republican judge.

Terence P. Jeffrey is the editor of Human Events and a nationally syndicated columnist.

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