The Right to Violent Video Games
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)
This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support. Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case. A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying. Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay. He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety. At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed. On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented. Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.