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  • Supreme Court Rules on Violent Video Games

    Today’s Supreme Court decision in which it struck down California’s law restricting the sale or rental of violent video games to minors (PDF) is an important First Amendment decision that is not subject to a simple liberal/conservative breakdown, but the more interesting contrast may be between the votes in this case and another decision today and last Thursday.

    Seven justices voted to strike down California’s violent video game law, but the seven justices split into two camps.  Justice Scalia wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan, holding that video games qualify for First Amendment protections like other literary devices such as books, plays, and movies, and that content-based restrictions on video games are subject to invalidation unless they pass the Court’s strict scrutiny test.  The Court concluded that the law cannot pass this test because it is both over- and under-inclusive, e.g., noting that violent children’s cartoons were not covered.  Although Justice Scalia believes that the original public meaning of the First Amendment protects depictions of violence (as evidenced by his questions at oral argument and his current footnote 4), I doubt the other four justices care much about the original understanding. Justice Kennedy is a true First Amendment champion, but his opinions in this area seem to have more to do with his own belief regarding the virtues of free speech and personal autonomy.  The ratifiers’ view of free speech was quite similar, but their understanding should control if it conflicts with Justice Kennedy’s.  Justice Thomas’s dissent in today’s case raised an interesting possible conflict.

    Thomas argued that the original understanding of the First Amendment does not protect speech or expression to minors that their parents did not want them to receive. Justice Scalia takes him on (in footnote 3), noting the critical distinction that the California law was enforced through criminal sanctions.  I don’t know enough to referee that fight.  My sympathies as a parent resonate with Thomas, (I do not indulge my daughter’s “right” to talk to her mother and me in a disrespectful way—on those rare days when she is not perfect), but those personal sympathies cannot trump the proper original understanding of the First Amendment—whatever that is.

    Justice Alito, with Chief Justice Roberts, concurred in the judgment only.  They voted to strike down the law as written, but would permit legislatures more latitude to regulate the new medium that allows the user to control “the actions of a character who guns down scores of innocent victims,” which he argues may be shown in time to be qualitatively different than “reading a description of violence in a work of literature.”

    The more liberal justices split 3-1 on the result, but most of their First Amendment decisions seem dictated by whether they personally like the type of speech restrictions at issue.  In a separate opinion today, all four voted to uphold Arizona’s outrageous attempts to “equalize” campaign speech.  Justice Breyer has a narrow view of the First Amendment, and so his votes to uphold the Arizona and California laws today are at least predictable.

    Ginsburg’s and Kagan’s vote to approve the California law seems even more situational and results-oriented than Sotomayor’s.  Last Thursday, Ginsburg and Kagan joined a strong dissent that argued that a Vermont law restricting speech related to pharmaceutical marketing should be upheld.  The argument they joined last week was that commercial speech was due less First Amendment protection.  Today, they join Scalia in arguing that violent video games deserve the highest level of protection.  There are ways to try to square that apparent contradiction, but I suspect the basic difference in their minds was that Big Pharma is bad and Big Video is good.

    The ultimate conclusion is that we are ruled more by justices acting as platonic guardians rather than the few trying to apply the rule of law—even if they sometimes reach the same result.

    Posted in Legal [slideshow_deploy]

    7 Responses to Supreme Court Rules on Violent Video Games

    1. awunsch says:

      I suspect that the curent interpretation of "first amendment right to free speech" has been broadened well beyond the original intent.

      • Grecoeldal says:

        While I agree that our interpretation has broadened, I would say that it had to because of how much the media has broadened, the original intent of the First Amendment I would say mainly protected those speaking and the written word, however the media has changed so much that we have had to change our interpretation of it.

    2. Bobbie says:

      Because it's business between producers and retailers, it's up to the retailers freedom of choice to sell under the retailers plan of restriction or not. No government overreach.

      Parents need all the more involvement of their children's upbringing with acknowledgement of those in society who profit themselves through their own ignorant, stupid, violent, indecent, crap just because freedom of speech allows it. Clear indication of the kind of people in today's society. Those that produce, those that sell, those that buy and the potential in those that play. It's not up to the government to protect our children in this area, it's up to us.

      • Amen. Besides, if the parent knows the child, they will also know when that child can distinguish between fantasy and reality. And that actually happens earlier than most people expect. My 3 year old knows the difference between her imaginary "pie" she "cooks" for me and mommy, and a real pie. She already knows the difference between reality and fantasy, at three years old. Does this mean my job is done, in regards to that? Not hardly. Sheltering your children from the outside world may seem like the right thing to do, but what happens when they finally see the outside world, and you've done nothing but tell them how bad it is? You must, MUST, introduce them, ever so slowly, to bad things, and say "These things are bad, see that?" and SHOW them the consequences of those actions. Most people learn by seeing, not by listening. Are children any different? Nope.

      • Amen. Besides, if the parent knows the child, they will also know when that child can distinguish between fantasy and reality. And that actually happens earlier than most people expect. My 3 year old knows the difference between her imaginary "pie" she "cooks" for me and mommy, and a real pie. She already knows the difference between reality and fantasy, at three years old. Does this mean my job is done, in regards to that? Not hardly. Sheltering your children from the outside world may seem like the right thing to do, but what happens when they finally see the outside world, and you've done nothing but tell them how bad it is? You must, MUST, introduce them, ever so slowly, to bad things, and say "These things are bad, see that?" and SHOW them the consequences of those actions. Most people learn by seeing, not by listening. Are children any different? Nope.

    3. Betty Garcia says:

      I was going to make a point. But, thinking cleary it is all up to the upbringing of the children. Which reflects on us.

    4. Sedate Me says:

      It's the inconsistency that's the problem. There were all but 9 different rulings, some that made more sense than others. But I think they all were at least partially off the mark.

      This wasn't really about Free Speech. It was about commerce. It didn't interfere with the creation of the games (aka the "free speech") or possession in any way. Heck, I don't think it prevented minors from CREATING the games and playing them.The law only forbid SELLING violent video games to minors. If parents thought their kids playing the most graphic, realistic, depictions of murder, torture and mayhem imaginable for hours on end was fine, they could still have bought them and given them to their kids. The control would be in the hands of the parents. Allowing the kids to buy violent games is doing an end run on parental control. It allows the children to determine what they consume, irregardless of the potential "negative impact".

      That lays the groundwork for the challenge of any age-based restrictions done "for the good of the child and/or society". Despite what Scalia says, it makes any notion that preventing everyone access to swearing (actual speech) and nudity on TV or radio on the premise children "might" be watching unsustainable hypocrisy. Unless the right to consume violence trumps all else, the court has ruled children can handle purchasing even the most abhorrent visual images. Hearing the odd F-bomb, seeing an occasional tush on TV pales in comparison.

      Next, it brings into question all age-related restrictions on the purchase of things like porn, booze, cigarettes, cars, guns, etc, because it, if only indirectly, affirms the right of children to buy products denied to them purely because of their age. If a 4 year old can buy a murder simulator, why can't they see an R/ NC17 movie or buy a beer? (Indeed, why can't ADULTS under 21 buy beer?) And then there are other age restrictions, like voting, Age Of Consent Laws, joining the military, driving, getting abortions, going into Restricted movies, marriage, signing legal contracts, you name it. All can now be legitimately questioned.

      This may all sound silly…and it is silly. But that doesn't mean this messy ruling doesn't open the door to challenges to ALL I've listed above. I'm sure most will be challenged in the next decade and a few will be overturned thanks, at least in part, to this decision.

      I love my Freedom of Speech, but I don't think this ruling advances it the way some think it does. I think it may just set violence up as a special right that trumps others.

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