Justice Antonin Scalia and his teammates mowed down California's ban on violent video games with fully loaded First Amendment precedents and barbed retorts to opposing arguments. In doing so, the Supreme Court reinforced a fundamental point: that First Amendment protections do not depend on the medium of communication. Thus, video games are protected speech, and restrictions based on their content will be subject to strict scrutiny.
The California law at issue prohibited the sale or rental of
violent video games to minors, and imposed a civil penalty of
$1,000 for every violation. At the heart of the law was a
definition of the restricted games as those games "in which
the range of options available to a player includes killing,
maiming, dismembering, or sexually assaulting an image of a human
being, if those acts are depicted" in a manner that "[a]
reasonable person, considering the game as a whole, would find
appeals to a deviant or morbid interest of minors," that is
"patently offensive to prevailing standards in the community
as to what is suitable for minors," and that "causes the
game, as a whole, to lack serious literary, artistic, political, or
scientific value for minors." The definition cobbled together
tests adopted in two prior Supreme Court decisions, one adopting a
restriction on obscene materials specific to minors (Ginsberg
v. New York, 390 U.S. 629 (1968)), and the other a notoriously
vague decision governing obscenity generally and permitting the
standard for restrictions on obscene material to be based on
"community standards" (Miller v. California, 413
U.S. 15, 24 (1973)). However, it sought to apply them to depictions
of violence rather than depictions of nudity or sexually explicit
conduct.
The Supreme Court struck down the law in a split decision that
created some unusual alignments. Justice Scalia was joined by
Justice Kennedy, now considered a centrist, and the Court's
three female justices, Justices Ginsburg, Sotomayor, and Kagan, all
considered part of the liberal wing. Justices Alito and Roberts
concurred in the judgment, but would have avoided the central issue
of whether the law's restrictions unduly restricted protected
speech by finding it to be impermissibly vague. Justice Thomas
dissented, applying an "original intent" analysis that
would have held, in essence, that minors have no right to receive
any information at all other than what their parents want them to
have. Finally, and perhaps most strangely, Justice Breyer
dissented, arguing that the statute met strict scrutiny analysis,
primarily because interactive video games involve physical activity
as well as communication.
The majority acknowledged that the government may adopt limits on
materials available to minors that are more restrictive than the
limits that may constitutionally be applied to adults. However, it
held that in doing so the government is limited to areas that
traditionally have been the subject of restrictions on speech, such
as obscenity. Relying on its recent decision in United States
v. Stevens, 559 U.S. ___, 130 S.Ct. 1577 (2010), which stuck
down a statute prohibiting violent "crush" videos, the
Court held that "new categories of unprotected speech may not
be added to the list by a legislature that concludes certain speech
is too harmful to be tolerated." Brown v. Entertainment
Merchants Assn., 564 U.S. ___ (2011), Case No. 08-1448, slip
opinion at 3.
The majority fired back at the argument, asserted in different ways
both by Justice Alito and Justice Breyer, that interactive video
games are―or at least might be―different than
other forms of entertainment. "[W]hatever the challenges of
applying the Constitution to ever-advancing technology, 'the
basic principles of freedom of speech and the press, like the First
Amendment's command, do not vary, when a new and different
medium for communication appears." Brown, slip
opinion at 2-3.
The decision also shot down Justice Thomas's proposition
(notably joined by no other justice) that, in essence, parents have
"total parental control over children's lives," and
that children are "expected to be dutiful and obedient."
Instead, the majority held that "'minors are entitled to a
significant measure of First Amendment protection, and only in
relatively narrow and well-defined circumstances may government bar
public dissemination of protected materials to them.'"
Brown, slip opinion at 6-7, quoting Erznoznik v.
Jacksonville, 422 U.S. 205, 212–213 (1975).
Thus, the majority held that the California law was subject to
"strict scrutiny"―the most demanding test
imposed by constitutional law for the validity of restrictions on
speech. Brown, slip opinion at 11. When faced with that test, the
law was even less likely to survive than a pedestrian in Liberty
City.
First, the majority found that the California government
"acknowledges that it cannot show a direct causal link between
violent video games and harm to minors." Brown, slip
opinion at 12. In particular, it noted that the expert upon whom
the government primarily relied had conceded that to the extent
that exposure to violent video games had any meaningful effects,
"the same effects have been found when children watch
cartoons starring Bugs Bunny or the Road Runner . . . or when they
play video games like Sonic the Hedgehog . . . ."
Brown, slip opinion at 13.
Second, it found that the law was substantially under-inclusive,
singling out video-game providers and not addressing others, such
as "booksellers, cartoonists, and movie producers."
Brown, slip opinion at 14. This called into question whether the
law would effectively further the purported interest of protecting
minors from the effects of exposure to violent entertainment.
Finally, the majority concluded that the California law provided
only marginal benefits beyond those provided by existing, voluntary
regulations, while at the same time restricting purchases by minors
who have their parents consent to acquire restricted games.
Brown, slip opinion at 15-16.
The concurring and dissenting justices fired off in three different
decisions. Justice Alito adopted a limited approach that may have
been intended to provide common ground for the warring factions of
the Court. They would have tossed out the law on the grounds that
it was impermissibly vague, putting off for another day the
question of whether there is something unique about video games
that might justify restrictions that would otherwise be
unconstitutional under the First Amendment. If Alito's intent
was to provide a pragmatic solution that would satisfy most or all
of his colleagues, he failed. Only Justice Roberts joined his
concurring opinion.
Justice Thomas dissented, arguing that the First Amendment has to
be construed in light of the cultural values in place at the time
it was adopted. Relying principally on "[t]wo parenting books
published in the 1830's," but also citing from works by
Locke and Rousseau and the letters of Thomas Jefferson, Thomas
claimed that it was the cultural norm at the time of the adoption
of the First Amendment that "[p]arents had total authority
over what their children read," as well as the right to
control other aspects of their children's lives, and hence that
"the Framers could not possibly have understood 'the
freedom of speech' to include an unqualified right to speak to
minors." Brown, slip opinion, Thomas, J., dissenting.
Thus, Thomas would have rejected any First Amendment
protection for minors to have access to information of any kind.
Responding, the majority pointed out that even if it is true that
parents have traditionally had the power to control what their
children hear and say, "it does not follow that the state has
the power to prevent children from hearing or saying anything
without their parents' prior consent." Brown,
slip opinion at 7, n. 3.
As a practical matter, the proposition that parents have the power
to control what their children hear or say would come as a surprise
to most parents. Regardless, the majority decision points out that
even if they do that does not mean that the government has the
power to compel them to exercise that authority, or the power to
prevent their children from hearing or saying anything they have
not approved.
Justice Breyer's dissent asserts that video games are different
because they constitute "an interactive, virtual form of
target practice," and while the evidence is not conclusive,
there is research supporting the proposition that the effects of
video games on violent or aggressive tendencies in minors "may
be" more significant and severe than other forms of
communication or entertainment. Brown, slip opinion,
Breyer, J., dissenting. Under these circumstances, he argues, the
courts should defer to the judgment of legislature. Thus, Breyer
concludes, the California law should have been found to survive
strict scrutiny.
It remains to be seen how the consequences of the Court's
decision will play out. Contrary to the concern expressed by
Justice Alito, however, it's highly unlikely that the
recognition of First Amendment protection for violent video games
will spell an end to industry self-regulation, particularly because
the California statute was struck down in part based on the
recognition of the efficacy of the self-regulatory scheme.
Therefore, expect industry self-regulation to march on while state
and federal statutes fall by the wayside. In any event, California
has used this law's last life, and at least for now, the game
is over.
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