The Intersection between Tort Law and Social Psychology in Violent Videogames

The increasing realism of videogames is unmistakable. With better graphics, enhanced sound, and more advanced plotlines, videogames are becoming frighteningly “lifelike.” While videogame humans still don’t look exactly like real humans, they will eventually. In fact, based on screens like the one to the left (which is from the game “Call of Duty 3“), that day seems to be approaching with great haste.

These new and remarkably vivid games invite numerous questions for legal scholars. One of the more fascinating questions is whether young persons become more likely to commit violence by playing violent videogames and, if so, whether that contribution should be considered legally-cognizable under tort law.

Several courts have already examined this question, including a Tennessee state court in Hamel, et al. v. Sony Computer Entertainment, Rockstar Games, and Wal-Mart, No. 28,613-III (Cocke County Cir. Court of Tenn. 2003). The claim, which asked for $46 million in compensatory damages and $200 million in punitive damages from the designer, marketer, and one of the retailers of the popular PlayStation 2 game “Grand Theft Auto (“GTA”)”, was brought by the decedents of a 43-year-old man shot and killed by two teenage boys while driving through Tennessee’s Great Smokey Mountains. The boys claimed that their experience playing GTA, which rewards players for shooting at pedestrians, inspired them to go on an actual shooting spree—a goal made infinitely more obtainable by their access to a parent’s shotgun. Jack Thompson, one of the lawyers for the plaintiff in Hamel, was recently profiled in Newsweek. Thompson insists that videogame companies owe a duty to consumers to either produce “responsible” games or to ensure that sales of violent ones go stringently regulated—and their failure to do either, in the view of Thompson, can cause tragedies like the one which befell Mr. Hamel.

Unfortunately for Thompson, the Hamel lawsuit failed, as have others like it. Courts have yet to identify an empirically-verifiable causal nexus between on-screen killings and real-life ones. Plaintiffs are likewise burdened by the sheer fact that most players do not seem inspired to commit real-life crimes or to suffer elevated aggression. For related reasons, courts have refrained from holding that videogame companies breach a duty of care to consumers by making, marketing, and distributing these games. Similar reasoning has been applied to other forms of violent entertainment, such as movies (e.g., Natural Born Killers) or songs (e.g., the works of Judas Priest) that allegedly inspire fans to commit crimes. But perhaps meaningfully distinguishing, videogame players, unlike movie goers or music listeners, control the characters on-screen and the game unfolds in large part based on the abilities and choices of those players.

The lack of litigation success has not dissuaded lawmakers from seeking to regulate violent videogames. In November 2005, Senator Hillary Rodham Clinton co-sponsored the Family Entertainment Protection Act (”FEPA”), which aimed to impose significant fines on videogame retailers that fail to enforce game ratings. These ratings are determined by the videogame industry’s Entertainment Software Rating Board (”ESRB”). The ESRB’s most restrictive ratings are “Adult Only” and “Mature Only,” which are directed towards particularly violent and sexually-explicit games. Critics of the rating system contend that the ratings are not enforced; in fact, a more restrictive label, much like an NC-17 label for a film, can propel sales by making a game sound more realistic and compelling. More recently, in September 2006, Congressman Fred Upton proposed the Video Game Decency Act (H.R. 6120), which would require videogame labels to provide more detail and candor in revealing sexual content, with the expectation that more label information will enable parents to better select games for their children. Call it a “consumer choice” type of rationale.

Courts and lawmakers aren’t the only groups interested in the relationship between videogame violence and real violence. Social psychologists, like Jeffrey Goldstein of the University of Utrecht, have also weighed in. In comparing various studies, Goldstein concludes that videogame violence neither incites nor encourages real violence:

Even if we accept that there is a correlation between amount of time spent playing (violent) video games and aggressive behavior, there is no reason to think that games are the cause of aggression (Anderson & Dill, 2000; Colwell & Payne, 2000; Roe & Muijs, 1998). Furthermore, some correlational studies find no significant relationship with aggression (e.g., Sacher, 1993; van Schie & Wiegman, 1997).

To amplify Goldstein’s conclusion, other scientific research suggests that playing violent videogames may supply a therapeutic, healing benefit. According to a study of videogame players conducted by Dr. Bryan Raudenbush of Wheeling Jesuit University, videogames “can reduce pain and a high speed virtual death-match is more effective at dulling discomfort than an arcade classic like space invaders.” The study indicates that violent games are perhaps the best types of game for capturing the attention of their players and distracting them from what would otherwise ail them.

So if violent videogames are indeed therapeutic, we might wonder to what extent the “primacy effect”—the tendency for the first information received to carry more weight than later information on one’s overall impression—influences how the non-gameplaying public perceives violent videogames? After-all, many parents, judges, and lawmakers are worried about children playing violent videogames, and presumably many of them base their opinions on on-screen images rather than from actually playing the games. So perhaps the primacy effect is relevant: adults see children playing games that feature horrific images, which in turn dissuades them from wanting to try those games (or to learn more about the games), which in turn motivates them to dislike those games and to discount positive observations about the games and their effects on players.

But even if the primacy effect lends insight, new research on motivations behind playing videogames offers, at least by implication, a more sobering take. According to a recent study conducted by psychologists at the University of Rochester and published in Motivation and Emotion, playing videogames fulfills basic psychological needs, including autonomy, control, and competence. So why do videogame players feel obliged to simulate violence in order to satisfy their basic psychological needs? Why can’t those needs be satisfied by simulating charitable works or urban revitalization? I know, people don’t need to simulate good deeds on-screen: they can physically partake in them. But is that the real reason why games featuring those objectives would be considered incredibly lame and never sell?

I’m not sure, but perhaps our tendency to satisfy basic needs through videogame violence relates to why we often condone or even praise real-life violence. Sure, there are plenty of times when we repudiate violence, but it is frequently the circumstances and situational factors of the violence rather than the violence itself. Just juxtapose public reaction to the hanging of Saddam Hussein (which most Americans supported) with reaction to the treatment of Hussein in the minutes immediately preceding his hanging (which many Americans seemed to oppose). Or take more routine circumstances—we embrace two boxers who savagely beat each other up, but assign criminal sanction to two street fighters engaging in the very same violence; we applaud and financially-reward a linebacker for sacking a quarterback with a harsh blow to the ribs, but we punish that same linebacker for exacting the same blow, except a foot higher on the quarterback’s body. Is it really the violence that we don’t like?

So maybe courts and various academics are missing a potentially larger point about violent videogames. Maybe we shouldn’t be looking for causation or duty or other elements of a tort claim. Maybe we should instead look for what those games say about the human animal—us.