This week, the U.S. Supreme Court struck down a California law banning the sale of violent video games to children. In Brown v. Entertainment Merchants Association, 564 U.S. 1 (2011), the Court held that the First Amendment right to free speech protects the video games. As I predicted last November in a blog post on the oral argument in this case, Justice Scalia did not favor upholding the law, and indeed he wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito and Chief Justice Roberts wrote a separate opinion, concurring in the judgment, while only Justices Thomas and Breyer dissented.
So what’s to like – or at least protect – about violent video games? The opinion is clear that video games are protected by the First Amendment. Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.” The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction. The Court goes on to state that last term’s opinion in United States v. Stevens controls. Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “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.” (564 U.S. at 3) Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors. The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.” “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)
Justice Scalia’s opinion emphasizes that we have no tradition in this country of sheltering children from violent depictions, and he catalogues many gory examples from books that children routinely read: Grimm’s Fairy Tales, The Odyssey, The Inferno, and The Lord of the Flies are a few of his examples. His point is well-taken: the image of poor, fat Piggy being killed by other children in The Lord of the Flies remains vivid in my mind forty years after I read the book. Another of Scalia’s points is well-taken as well: such an account is not “just” fiction; it carries various social messages. As a child, I had neither the size nor the personality to be a bully, but reading about Piggy’s plight, far from turning me into a violent attacker, made me empathize even more with those kids who were further down the social food chain than I was.
To me, the most interesting and thought-provoking thing about the opinion in this case, and the thing most likely to generate lots of commentary, is that the free speech right being protected here is not primarily that of the video game producers – it is instead the right of minors to have access to protected speech, unless their parents have made a prior objection to their receipt of that information. The majority cites a 1975 case, Erznoznik v. Jacksonville (which struck down an ordinance forbidding owners of drive-in movies to show films containing nudity), for the proposition that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (564 U.S. at 7) Justice Scalia distinguishes between the government enforcing or supporting a parental ban (which would be permissible) and, as in the case of the California statute, the government imposing its own ban on what materials minors can access (which is unconstitutional).
There will likely be much discussion in the future of where and how to draw the line between governmental support of parents’ restrictions on their own children, and governmental interference with a child’s right to access protected speech. This will be very interesting, and will include, no doubt, some violent differences of opinion to which minors, presumably, will have access.