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2005 Utah L. Rev. 695 (2005)
A Disconnect between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice

handle is hein.journals/utahlr2005 and id is 705 raw text is: A Disconnect Between Law and Neuroscience: Modem Brain Science, Media Influences, and Juvenile Justice Kevin W. Saunders* Constitutional law is often a matter of analyzing history and underlying legal principles or philosophical concepts such as equality and human dignity, but there are instances in which facts play a strong to dispositive role. If government infringes on a fundamental right, its action is evaluated using a strict scrutiny test; the infringement must be necessary to a compelling governmental interest. But the assessment of whether a governmental interest is compelling cannot be made in the abstract. Interests are compelling or not depending on the circumstances, and the descriptions of those circumstances are statements about facts. If the interest is found to be compelling, whether the statute or other action is necessary to that interest also turns on the facts of the situation. Courts have regularly said that the state has a compelling governmental interest in the physical and psychological well-being of youth. For example, in Video Software Dealers Ass 'n v. Webster,' one of the earlier cases addressing concerns over the exposure of youth to media violence, the court recognized that interest as compelling, but still declared unconstitutional a statute limiting the distribution to minors of violent videos.2 The court based its conclusion on concerns over the facts that could be demonstrated; even if there is some connection of media violence to real world violence, the court could not determine just what sort of violent depiction caused that effect.3 In more recent cases, courts have been more general in their refusal to see any causative effect.4 Those cases may have required a more general rejection because the ordinances at issue were more specific, aiming not at violent film or violent media generally, but at the sort of violent video game in which the player takes an active role. If any violent media are to have a causative effect in real world violence, these first-person shooter games would appear most likely.5 Yet *Professor of Law, Michigan State University. A.B., Franklin & Marshall College; M.S., M.A., Ph.D., University of Miami; J.D., University of Michigan. The author wishes to thank Professor Greg Mitchell and Dr. Mary E. Scott for their comments on portions of earlier drafts of this manuscript. Professor Saunders authored a brief amicus curiae on behalf of The Lion & Lamb Project supporting the appellee in Interactive Digital Software Ass 'n v. St. Louis Co., 329 F.3d 954 (8th Cir. 2003), a case contesting the constitutionality of an ordinance limiting the access of children to violent video games. He was also on brief for petitioner in Thompson v. Oklahoma, 487 U.S. 815 (1988), contesting the application of the death penalty to a person who committed murder while fifteen years old. 1773 F. Supp. 1275 (W.D. Mo. 1991), affd, 968 F.2d 684 (8th Cir. 1992). 21d. at 1283. 3Id. at 1281. 4Id. 5See infra Part II.B.2 (discussing research on effect of violent video games on real world 695

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