The Blame Game

This article originally appeared in Denver Rocky Mountain News on May 9, 1999, as part of a point-counterpoint on whether video-game makers should be held liable for the Littleton tragedy.

Although the Littleton tragedy is still fresh in our minds, the national struggle to respond is well under way. We're asking what we can do to avoid such a thing in the future. Yet we know that such tragedies are all too human. Thus, the real question is how to reduce their likelihood--consistent with our remaining a free society.

That qualification is no small matter, of course. We could reduce crimedramatically, for example, simply by locking up all 15 to 30-year-old males,who commit most crimes. But we don't do that. And we don't because those menhave rights--rights to be free until they've done something wrong.

Yet we hear calls today to restrict the freedom of people who in some way we"associate" with the Littleton tragedy--gun owners and manufacturers, movieand video game producers, even school and corrections officials who may havebeen "implicated." And we hear calls as well to hold such people legallyliable.

Before heeding those calls, however, it may be useful to review how freedomlimits what we can do. None of this is to be confused with having a "fetish"for freedom--to the exclusion of all risk-prevention measures. Rather, it issimply to recognize that in a free society we cannot eliminate all risk.Moreover, we can hold people liable for risks that materialize only whenthey are fairly directly responsible for those incidents.

Thus, there are two basic ways we handle risk through law. We try to reducerisk, prior to something's happening, through regulatory restrictions. Andafter an incident, we hold those responsible legally liable--criminallyliable, where punishment is appropriate, or civilly liable, to pay for thelosses.

In either case, of course, the hope is that the threat of legal sanctionswill lead people to adjust their behavior. But as we know even in theLittleton case, that doesn't always happen.

How, then, should we respond to those who call for a legal "crack-down" onour culture? Should we impose restrictions on those who produce movies andvideo games that feature gratuitous violence, or hold producers liable whentheir products are "implicated" in some incident?

The answers are not obvious, but the presumption, in a free society, mustalways be against such measures, and the burden of proof on those who wouldimpose them. It is easy to invoke the law, after all, but eventually wecould find ourselves in a police state, which none of us, presumably, wouldwant. What, then, are the issues that need sorting out?

Regarding regulation, the Constitution rightly limits what we can do by wayof prior restraint. Nevertheless, we distinguish adults from children. Andwe already have voluntary restraints on movies in the form of the industryrating system. Perhaps the video industry should do the same. The problem,however, is practical. Those games are easily exchanged among children. Andmost are used in the home, where parents, presumably, are best able toimpose any restrictions. Thus, short of an outright ban, which wouldinfringe the rights of adults, it is doubtful that regulatory restrictionswould be at all effective.

But what about holding producers legally liable when their products are"implicated" in an incident like that in Littleton? Much as we may want,when confronted with such a tragedy, to hold someone liable, we can't holdjust anyone liable. We need a good reason, some principle of the matter--aprinciple that sweeps narrowly enough not to later haunt us. By traditionthe principle has always been, at least until very recently, that only thosewho fairly immediately caused the loss can be held liable for it. Thus, wedon't hold parents liable for the crimes of their children--by definition,"crimes" require a mind mature enough to be "guilty"--unless they "aided orabetted" the acts. And we shouldn't hold gun manufacturers or sellers liableeither, unless they too aid or abet. We shouldn't because responsibilityrests ultimately with those who commit forbidden acts, not with those merely"implicated."

Without doubt, culture "influences" people. Tobacco ads encourage somepeople to switch brands, but they don't "cause" that, much less cause peopleto smoke. We have to be very careful about extending liability--criminal orcivil--because there is no end to it. After all, at some level, everythingis connected to everything else. Today, it may be video games. Tomorrow itcould be Romeo and Juliet, for "encouraging" suicide.

The Littleton tragedy has many aspects, and it is doubtless comforting tocast the net of responsibility widely, especially when it capturesmomentarily unpopular objects. But we deceive ourselves when this distractsus from the immediate sources of wrong. The flight from individualresponsibility is all around us. That is what needs our attention.

Roger Pilon

Roger Pilon is the director of the Cato Institute's Center on Constitutional Studies.