First Amendment Protects Violent Video Games ... for Now

Resisting calls to create a new limitation on free speech, the U.S. Supreme Court on Monday ruled that states cannot ban the sale or rental of violent video games to children, leaving the issue up to parents and self regulation by the $10 billion video game industry.

On a decisive 7-2 vote, the Court struck down California's 2005 law, which prohibited anyone under 18 from buying or renting violent video games "in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being," in a way that was "patently offensive," appealed to minors' "deviant or morbid interests" and lacked "serious literary, artistic, political or scientific value." Parents would have been able to buy the games for their children, but retailers who sold directly to minors would have faced fines of up to $1,000 for each game sold.

Writing for the majority, Justice Antonin Scalia said, "[e]ven where the protection of children is the object, the constitutional limits on governmental action apply." Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority. Justice Samuel A. Alito Jr., in a concurring opinion, joined by Chief Justice John G. Roberts Jr., voted with the majority, but instead of adopting its reasoning, relied on the more narrow grounds that the law was too vague. Justices Stephen G. Breyer and Clarence Thomas each wrote separate dissents. Brown v. Entertainment Merchants Association, 2011 DJDAR 9459 (U.S. Sct. June 27, 2011).

Spanning the conventional ideological spectrum, the majority held that "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages - through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

Although the "State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children," the majority found that approach "unprecedented and mistaken." While states have legitimate power to protect children from harm, "that does not include a free-floating power to restrict the ideas to which children may be exposed." Non-obscene speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

In an opinion that came as a great relief to First Amendment advocates, Scalia ruled that unlike depictions of sexual conduct, there is no tradition in the United States of restricting children's access to depictions of violence. He noted the violence in many popular children's fairy tales such as Hansel and Gretel (who kill their captor by baking her in an oven), Cinderella (in which the evil stepsisters have their eyes pecked out by doves) and Snow White (where the evil queen is forced to wear red hot slippers and dance until she is dead).

"Certainly the books we give children to read - or read to them when they are younger - contain no shortage of gore," Scalia wrote.

Furthermore, Scalia pointed out that there is no clear proof that violent video games actually cause harm to children, or any more harm than other forms of entertainment. One doctor "admits that 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 that are rated 'E' or even when they 'view a picture of a gun."

On California's attempt to prove the harmful effects of violent video games on children, Scalia noted that while some studies "show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game," the "state's evidence is not compelling."

Although Alito concurred in the result, he complained about the gruesomeness of these games. "The objective of one game is to rape a mother and her daughters," he wrote. In another, "players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository." Soon, he added, children may play three-dimensional high-definition games wearing equipment that will allow them to "actually feel the splatting blood from the blown-off head" of a victim.

Scalia readily acknowledged that Alito had identified some disturbing images but "disgust is not a valid basis for restricting expression."

As to Alito's objection to comparing the experience of playing a video game to reading a book, Scalia observed that while "reading Dante is undeniably more cultured and intellectually edifying than playing Mortal Kombat...these cultural and intellectual differences are not constitutional ones."

In his dissent, Breyer attempted to restrict the scope of First Amendment protection accorded to video games by claiming that such games "combine physical action with expression," presumably because a player uses a game console, buttons, computer keyboard, mouse or the old school joy-stick. Breyer never explains why expression accompanied by such physical activities is entitled to diminished First Amendment protection any more than live theater, dance, pantomime, or reading a book using a Kindle should enjoy less protection because physical action is involved.

Thomas, alone among the justices in limiting First Amendment protection to what existed in 1789, argued in his separate dissent that the nation's founders never intended free speech rights to "include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians." That parents have historically supervised what their children read and view, hardly means that given Supreme Court precedents, government can pass laws restricting the sale and rental of otherwise constitutionally protected material.

The California law never took effect. Lower courts enjoined it on the grounds that it violated minors' constitutional rights, and that California lacked enough evidence to prove that violent games cause physical and psychological harm to minors. Courts in six other states, including Michigan and Illinois, reached the same conclusion, striking down similar bans.

The decision follows recent Supreme Court decisions upholding the First Amendment, with the justices throwing out attempts to ban animal cruelty videos, protests at military funerals and political speech by businesses. The Court will test those limits in October when it takes up a new case involving the government's effort to protect children from what they might see and hear, following appellate court rulings that threw out Federal Communications Commission rules against the isolated use of expletives, as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of ABC's "NYPD Blue."

Efforts to impose government restrictions on the sale of violent video games to children are not over. The bill's author, Leland Yee, a child psychologist and California state senator, told The Associated Press Monday that he was studying the dissenting opinions in hopes of finding a way to reintroduce the law in a way that would be constitutional.

But for now the First Amendment has prevailed.