How paternalistic is the government when it comes to the health and safety of children? Well, it depends on the specific issue being considered because inconsistencies abound. Unfortunately, exposure to violence is an area where children are increasingly unprotected. Through actions taken by state legislatures with regard to youth hunting and recently by the Supreme Court with regard to violent videos, the trend is toward the political interests and biases of adults and away from the well-being of children.
The politically motivated push to allow young children to hunt continues to spread. Since first writing on the topic in late 2009 (see "Teaching Children to Kill" 10/2/09 and "The Supreme Court and the Culpability of a Child" 11/18/09), four more states have passed legislation reducing or completely eliminating minimum age requirements for hunting. Michigan and New York are the latest states to jump on the bandwagon.
New York for example is in the process of amending state law to allow 12 year old kids the right to kill "big game" such as bears with extremely sharp and powerful bows and arrows. Picture it. According to the American Bear Association a male bear weighs an average of about 250 pounds and a female about 150 pounds; an average 12 year old child weighs about 90 pounds. I'm not sure they should have anything to do with each other.
The mental, physical and emotional appropriateness of encouraging children to take lethal weapons into the woods and kill animals for "sport" and pleasure continues to be troubling.
There are numerous examples of seriously dangerous consequences to allowing children to hunt. About eight months ago a seven year old Virginia boy was accidentally killed by his 10 year old brother while hunting. A few months later, an eight year old in the second grade in Colorado accidentally killed himself when his hunting rifle went off in his hands. Then a nine year old girl was killed in May by her 11 year old friend while they were rabbit hunting together in Alaska; followed a few weeks later by a nine year old girl in Texas who was accidentally killed by her grandfather during a family hunting trip. In April of this year a five year old child in Wisconsin was accidentally shot (but not killed), by her father while turkey hunting and a month later, a 10 year old Virginia boy was shot by his uncle while hunting. And these are just a sampling of the tragic incidents easily found on the internet concerning children hunting.
In addition to these accidental shootings, there was a 10 year old boy from Ohio who, earlier this year, took his hunting rifle and intentionally killed his mother. A similar incident occurred two years ago in Pennsylvania where another 10 year old boy took his child sized hunting rifle and used it to kill his father’s pregnant girlfriend. About three months prior to that incident, an eight year old Arizona boy took the rifle he used to shoot prairie dogs and killed his father and his father's co-worker. The physical and emotional safety of children hunting is questionable at best.
The state has an interest in protecting our youth. This paternalistic approach is evidenced in many current laws and is so strong in certain circumstances, it can trump parental control. Presumably this state interest in the well being of youth is why there are child labor laws, for instance. Even if a family wanted its children to work 10 hours a day, seven days a week because they desperately needed the money, the state has determined it would be illegal to do so because of the harm it would cause the child. In addition, even though it might be convenient for you to have your 14 year old drive your 10 year old to school, or run down to the store and pick up a bottle of wine for dinner, the law prohibits it thus protecting the safety of the child and others in society.
Governor Cuomo signed the New York bill that will allow 12 year old children hunt bears. What adolescent developmental change has he become aware of that would convince him the hunting age should be reduced? In researching the background to this bill, nothing regarding the health, safety or well being of New York youth was discussed. What was discussed however was the decline in hunter numbers and the concomitant fear that the "sport" is losing participants.
The politics behind this issue is obvious. Increasing youth hunting was started with a program initiative by the U.S. Sportsmen’s Alliance, the National Shooting Sports Foundation, and the National Wild Turkey Federation. This “Families Afield” program (as it is called), is supported by the National Rifle Association and a group in Congress called the Congressional Sportsmen’s Foundation. Unfortunately, opposition to youth hunting falls into a black hole somewhere between the gun control lobby and the animal welfare groups. There is no organized effort fighting the might of hunters and the NRA on this topic.
The Families Afield website makes it clear that encouraging children to hunt is to bolster the popularity of the sport and ensure its continued viability and economic benefit. The website states in an incredulous tone that “ In some states, laws actually prohibit parents from introducing their young sons and daughters to big-game hunting. Youths may be restricted until age 10 or 12 or even later, and subjected to stringent coursework requirements, before they can legally join an adult mentor for a hunt. These barriers cause many youths to lose interest in hunting and they too often settle for other activities like video games or ORGANIZED SPORTS. Eventually... hunting itself ... could be compromised”. (Emphasis added).
The Supreme Court was recently asked to consider the effect of violent material on children. A case was brought challenging a California law prohibiting the sale and rental of violent video games to minors (Brown v. Entertainment Merchants Association et al (bench opinion 6/27/11)). The law was struck down by a majority of the Court concluding it was a breach of freedom of speech under the First Amendment. The opinions of the justices (five in the majority, two concurring on different grounds and two dissenting), contain much discussion and dissent about violence, children and the role of government.
The majority starts off its opinion by discussing a prior case, U.S. v. Stevens (see blog post "U.S. v. Stevens: What interests are being protected?" 4/27/10). Referring to the Stevens case, the Court says "...[t]hat holding controls this case." This is a curious jumping off point for the Court because the Stevens case has nothing to do with children. It is a case involving a law that prohibited the sale of "crush" videos which are videos of scantily clad women who maim and kill animals for the sexual titillation of viewers. The Stevens Court held prohibiting these videos was a breach of freedom of speech and the law was struck down.
Eventually the Court in the violent video case turned to the issue of children and discussed an important precedent, Ginsberg v. New York. In the Ginsberg case the Supreme Court upheld a law prohibiting the sale of sexual material to minors. The New York statute in Ginsberg and other similar statutes throughout the country have been upheld even in the face of First Amendment challenges. To explain this, the Court in the violent video case drew a distinction between sexual material and violent material by saying that since "obscenity" was already an established exception to the First Amendment, prohibiting children from viewing sexual material was merely an extension of this prohibition and therefore legal. Since violence is not an established exception to the First Amendment, the Court concluded violent videos could not be kept from adults or from children. (Although it is worth noting that our movie rating system already prohibits children from viewing violent movies with an NC-17 rating. According to the Motion Picture Association of America, a movie earns an NC-17 rating based on violence, sex or any other element considered too strong for viewing by children. The Court did not discuss movie ratings.)
The Court's First Amendment analysis appears rational on its face however, the reasoning enunciated by the Ginsberg court applies equally-if not more so- to the issue of shielding children from violence. The basic reasoning of the Ginsburg case is that the state has an interest in protecting the well being of its youth. The Supreme Court says in Ginsburg “…we have recognized that even where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults’…[t]he well-being of ... children is of course a subject within the State’s constitutional power to regulate, and in our view,…[t]he State also has an independent interest in the well-being of its youth.”
But the bottom line is the current Supreme Court says sexy stuff can be kept away from children while the violent shouldn't be held back. This distinction has some historical roots but appears to be based mainly on "strict constructionist" dogma because there is little basis in reason or common sense for prohibiting the sexual material but allowing the violent. (It is interesting to note that the sexual material in the Ginsberg case involved nudity and was not actually considered "obscene" for adults but was accepted as obscene for children.)
Similar to child labor law considerations, focus on these issues should be centered on the well being of the child. The Court in the violent video case spent some time grappling with this concept and did note “[t]he Supreme Court has recognized that ‘there is a compelling interest in protecting the physical and psychological well-being of minors.’" The Court however had difficulty with the issue of "proof" between a child's exposure to violence and psychological harm.
The psychological harm caused by violent video games or by sexual material is indeed hard to prove. And so is the psychological harm that can be done to a young child who is encouraged to find pleasure and satisfaction in purposely killing an animal. In fact, one of the reasons the violent video law was struck down by the Court was this failure of proof. Apparently the studies presented by the State showing the harmful psychological effects to children of violent video games were perceived as flawed and the Court rejected them. The Court conceded that while a correlation between aggression and violent video game playing can be shown, causation cannot. The Court said "[t]he State's evidence is not compelling...[t]hey do not prove that violent video games cause minors to act aggressively..." (However, Justice Breyer in his dissent compiled a list of approximately 115 peer-reviewed articles showing the psychological harm resulting from playing violent video games and he contrasted this with a list of only about 34 articles which refuted the thesis).
It’s hard to imagine that the studies in the Ginsberg nudity case were much better. In fact, the Supreme Court noted in Ginsberg that “…the growing consensus of commentators is that ‘while these studies all agree that a causal link has not been demonstrated [between sexual material and harm to children], they are equally agreed that a causal link has not been disproved either.’ We do not demand of legislatures scientifically certain criteria of legislation.”
There are numerous studies that show childhood animal cruelty can lead to adult violence. Courts might find these studies persuasive or flawed. As evidenced by the Supreme Court in Ginsberg, at some point we admit as a society that certain behaviors fall outside the purview of what the average person considers acceptable, healthy behavior-hard and fast science or not. There are approximately 19.4 million people in New York State, 4.5% are hunters; would the average New York resident for example, find it a positive experience for a 12 year old child to take a lethal weapon and kill a two hundred pound bear for "sport"? No one eats bear last time I checked; it is simply killing for pleasure. Seems like a form of violence to me-perhaps even a step ahead of the pretend world of violent videos. Justice Breyer in his dissent to the violent video case points out that the studies he reviewed "...say that the closer a child's behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm."
Of course the true interests of the child, in the end, are not of primary concern in these matters; it is the interests of the adult. In Pennsylvania for example, they are trying so hard to recruit new hunters that a bill was introduced to allow hunting on Sundays. Motivation for the bill couldn't be more clear from it's preamble which reads in part "... Pennsylvania has experienced consistent declines in hunting participation ...over the past several decades...youth participation is vital to maintaining the long-standing tradition of hunting in Pennsylvania, we can effectively double the number of hunting days for youths during the school year by offering Sunday hunting...". I wonder what Sunday school teachers and religious observers will think about this one.
Post script: The New York Times reported that the mass killer Anders Behring Breivik of Norway listed on his Facebook page that some of his favorite activities include hunting and playing the video games World of Warcraft and Modern Warfare 2.
