In an earlier post, I discussed how neuroscience might inform cases on freedom of thought. How about the First Amendment freedom that is much more familiar in our case law and in popular discussion: the freedom of speech? Some writers have argued that neuroscience should inform free speech law, because some speech – such as violence depicted in movies or video games – can warp childrens' thinking or moral development, and neuroscience (or psychology) has provided the evidence. In a 2005 article highlighted in this blog, for example, Professor Kevin Saunders – who has written a number of thought-provoking pieces on video game regulation – argues First Amendment case law on that issue is characterized by “a disconnect between law and neuroscience.” He writes that “[c]ourts have been unable to see the relationship [between media and real world violence] that most social scientists and health care professionals take as established.” State and city lawmakers have cited such studies in trying to ban the sale of violent video games to minors. So far they have been unsuccessful. Court after court in the past eight years has held that such violent video game restrictions violate the First Amendment. Less than two months ago, the Ninth Circuit Court of Appeals added another decision to this list: It found unconstitutional a California law barring sale or rental of violent video games to minors, and noted in doing so that “[n]one of the research [submitted in the case] establishes or suggests a causal link between minors playing violent video games” and the harms that the state claimed result such game playing. (The case is Video Game Dealers Association v. Schwarzenegger, 556 F. 3d 950 (9th Cir. 2009)).
Although these litigation battles have focused on the specific question of how minors' mental functioning and behavior is affected by violent video games, it’s interesting to step back and consider at a more general level whether (and how) it should make any First Amendment difference that speech (defined broadly to include watching films and playing video games) has a certain physiological effect.
After all, we don’t need scientific evidence to know that speech can do plenty of harm. Cutting words from family members or peers can cause emotional pain and leave deep psychological scars. It’s likely that some individuals have suffered far more from others’ verbal cruelty than they have from whatever violent video games they may have played or horror films they might have watched. Speech harms in other words, are nothing new and have not – by themselves – generally been taken by courts to justify censorship or other limits on speech. The fact that words are deeply offensive doesn’t mean they’re unprotected by the First Amendment. On the contrary, the First Amendment protects the worst kind of hate speech. As Professor Susan Hurley has written, speech receives the extraordinary protection it does in the US and some other Western societies not because it is a harm-free activity, but rather because these societies have found reasons to leave people with freedom to inflict speech harms even if they don’t have the freedom to inflict other sorts of harms.
Why then does it make any difference if neuroscientists or psychologists provide evidence that certain kinds of speech (like violent video games) affect us in certain ways? The recent literature on violent media seems to present two sorts of answers to this question. First, some writers use it to challenge the intuition that harms stemming from words or imagery are far less concrete – and therefore less real and permanent – than physical or economic harm. Underlying at least some accounts of free speech is the notion that while speech might harm us, it doesn’t harm us in the same way as a punch in the stomach, or theft of our property. It’s kind of an amended version of the famous line that “sticks and stones can break your bones but words can never hurt you” (or “names can never down you” if you’re a fan of The Who’s John Entwistle). Words can hurt, of course, but the harm they do to feelings seems intuitively quite different (at least to many people) than the harm that physical attacks might do to person or property. Hurt feelings are more amenable to being fixed by self-help, whether it’s letting time pass, talking to a friend or counselor, or changing one’s perspective – and so there’s less need for the state to intervene. But neuroscience can conceivably weaken this distinction between physical injuries and “non-physical” harms to our emotions because it provides a way of describing the latter in terms of the impacts they have on our physiology. Thus, California’s recent brief in Video Game Dealers Association v. Schwarzenegger stated that video games did not merely make children more aggressive, but in some minors, also caused “a reduction of activity in the frontal lobes of the brain.” Professor Saunders likewise stresses a psychiatrist’s observation that “emotions and experiences” are not only influenced by, but “in turn, alter the fundamental architecture of the brain” and that such influence is especially important to monitor during an individual’s childhood and teenage years, when the brain is still developing.
Those who are skeptical of the idea that speech harms are less worrisome than non-speech harms could conceivably point to other findings, like an fMRI study in 2003 finding support for the hypothesis that “the brain bases of social pain are similar to those of physical pain.” Not that this one finding shows that social slights are identical to physically painful injuries, or should receive the same treatment under the First Amendment or any other area of law. (The study’s authors have not, as far as I am aware, drawn any such implications from their findings). But it at least makes it more conceivable that speech harms may be more like certain physical harms than many people often assume.
There is, however, another giving speech special protection in spite of the harm it sometimes causes or threatens. It’s not that speech harms are less onerous or more easily fixable than other harms, but rather that the hurt feelings or revulsion caused by some speech is simply the price we pay for certain kinds of benefits that free speech protection provides to a free society, and that we couldn’t get any other way. For example, some argue that whatever harm it might shield, free speech protection is necessary for individual autonomy. If individuals are to have any space where they can govern their own lives free of government controls, they need, at a minimum, the freedom to think for themselves, and to give verbal or artistic expression to those thoughts. And so while the law can let government place heavy restrictions on how we do our jobs, drive our cars, or build our houses, it cannot (at least if our societies are to remain free societies) similarly let government into the fundamental sanctuary for our individual autonomy. It can’t let it try to shape the thoughts we think, the things we say, the books we read, and the films we watch.
Here too, however, there are assumptions being made that are vulnerable – at least in part – to empirical challenge. It is precisely such a challenge that is at the core of Professor Susan Hurley’s distinctive and fascinating argument (in "Bypassing Conscious Control") for why free speech protections for violent media may be at odds with – rather than a support for, or product of – individual autonomy. Watching violent films not only leads to aggressive behavior, she suggests, but also does so in ways that “bypass” our “autonomous deliberative processes.” This result is suggested by numerous studies she summarizes showing that “the mere perception of another’s behavior automatically increases, in ways subjects are not aware of, the likelihood of the perceiver’s behav[ing] that way himself.” Moreover, trying to escape from this “chameleon effect” may be hopeless, since our “pervasive imitative tendencies may [] be essential to the way our distinctively human minds are built.” Hurley avoids suggesting that any of these findings lead directly to any specific legal or policy conclusion. Her argument is rather that any analysis of where violent movie or TV-watching fits into free speech jurisprudence must take account of the fact that such violent imagery not only tends to produce imitations of the aggressive behavior it portrays, but does so in ways that are outside of the watchers’ knowledge or control – and thus, decreasing rather than promoting their autonomy.
So far, I’m not convinced that either of these lines of inquiry about the effects of speech provides good basis to roll back, or make exceptions to, free speech protections. The fact that speech harms can be redescribed in physiological terms doesn’t, by itself, show that they are beyond the corrective power of counterspeech or self-reflection (which, like the speech to which they are a response, can leave their imprint in our memory and mental activity). Nor is it clear that unconscious impacts of some speech make that speech undeserving of constitutional protection designed to reserve a sphere in our lives for autonomous decision-making. Even if a certain film, book, or video game has some effects on us that by-pass autonomous deliberative processes, such a film, book, or video game might simultaneously contribute to our autonomy in other ways – by letting us experience (and later call to mind) stories, imagery, or challenges that we have consciously sought out. Moreover, treating “bypass” effects as a reason for denying protection to speech seems to exclude a whole lot more from the realm of free speech than violent movies. First, as Professor Boudwijn de Bruin suggests in a response to Hurley’s analysis, “exposure to ‘nice’ behavior in the media will also be imitated in ways that bypass autonomy.” So too, one might guess, would watching films portraying all kinds of behavior that society want to discourage – like deception, stealing, or lack of respect for friends and family members. Of course, imitation of physical violence is likely to lead to greater harm than is imitation of a non-violent crime or sin. But if what makes something deserving of First Amendment protection is its contribution to autonomy, then that contribution seems just as lacking in both kinds of “bypass.” Second, there’s another sense in which these findings seem to cut strongly against First Amendment protection in general, and not just against violent films: As Hurley notes, it is not merely visual but also “verbal” representations of aggressive behavior that unconsciously trigger imitation of that behavior. (In one study she discusses, for example, subjects were respectively much ruder or more polite after “being primed with words representing rudeness [or] politeness”). So the threats to autonomy may come not only from film and video games, but also from books and conversations. Finally, as Hurley herself notes, even if violence in the media causes social harm, allowing government to place restrictions on our cultural lives might be worse (although it should be noted that California and other states have argued that they are not trying to censor violent video games, but simply to assure that minors can get access to such games only when their parents deem it appropriate).
Still, I think that it’s certainly helpful for scholars and judges thinking about free speech to be aware of how science might inform us – and in some cases, surprise us –about the effect that different kinds of speech might have our mental operations and behavior. As I have suggested in an earlier post, it is conceivable that such findings might not only provide possible reasons for finding exceptions to First Amendment protections, but might also help provide some guidance in promoting the individual autonomy that (at least in the view of some scholars) is the underlying purpose of First Amendment freedoms of thought and speech.
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