Supreme Court Says Anti-Violent Video Game Law Violates The First Amendment

Free Speech

from the okay,-is-this-settled-now? dept

Finally. For years now, various states have tried to put in place anti-violent video game laws. Every time they do so, the laws are challenged in court and every single time they’re found to be First Amendment violations. None of these cases went to the Supreme Court, however, until last year, when (then) Governor Arnold Schwarzenegger (star of tons of violent movies) decided to waste a lot of money that California doesn’t have, in order to appeal lower court rulings, at both the district and appeals court levels, that found California’s anti-violent video game law unconstitutional.

So, finally, the Supreme Court has weighed in… and it has agreed with every other court on this matter and found such laws to be unconstitutional restrictions on expression and free speech (pdf). The ruling, written by Justice Scalia, is long, but notes that while the Court has allowed blocking of obscene speech, that’s a limited category, and violence is not the same thing as obscenity. It also notes that children, contrary to the opinion of some, do enjoy First Amendment protections as well, and there aren’t special rules for them. Quoting an earlier case (Erznoznik), Scalia notes: “Speech 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.”

The majority clearly paid attention to the briefs in the case, concerning the long history of children being exposed to violence:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read–or read to them when they are younger–contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp.187?189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding?s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

The court goes on to note violence in all sorts of other media that children experience. It then dismisses the claim that video games are somehow “different” because they’re interactive, pointing to things like “choose-your-own-adventure” stories. Scalia also takes direct aim at Justice Alito (who concurs, but disagrees with the reasoning) for highlighting how “disgusting” some violent video games are, noting:

JUSTICE ALITO recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression.

Of course, all of this makes me wonder why obscenity gets a special exception to the First Amendment. Reading through the ruling, it seems to keep saying that obscenity is a special classification of speech, but refuses to explain why it’s different. If anything, this ruling suggests that this court can’t really answer that question if it came up today. Obscenity is just different because it is.

The court also rejects the (widely disputed) evidence by anti-violent video game professor Craig Anderson, by noting (as many of us have) that the research does not show what many of Anderson’s supporters insist it does show. That is, nowhere in the research is it proven that violent video games cause kids to act more aggressively. At best, the research shows a correlation, and other evidence suggests that other factors may be leading to the aggression, rather than the video games. Thankfully, it looks like Anderson’s totally ridiculous claim that because the researchers who signed his brief in this case had more papers published, it meant their research was more credible, gets completely ignored by the court.

The other opinions are interesting, if not particularly compelling. Justice Alito, as noted, agrees with the final ruling, but does seem really worried that violent video games just might be evil. Justice Thomas dissented, and his basic argument is that parents can restrict the free speech rights of minors. That’s true, to some extent… but that power is not universal, and that has nothing to do with the government restricting such rights, whether or not parents wish it to be restricted. Also, the opinion reads rather… old-fashioned, with him calling back to Puritanical days when fathers had “absolute powers” and children were considered “innately sinful.” He admits that we’ve gotten past that, but that doesn’t mean laws that view the world in that manner shouldn’t be allowed. Justice Breyer also dissents, and seems to also be persuaded that violent video games are evil, and thus says that the law is permissible in an effort to “protect the children.”

All in all, though, another strong First Amendment ruling from the Supreme Court. It still strikes me that this court struggles with the idea that obscenity has a special exception to the First Amendment, which also makes me wonder how it will deal with the next round of copyright/First Amendment cases that it will be facing, starting with Golan. I fear, given the court’s past discussions on copyright, that while it seems to have a strong First Amendment view towards most things, that it will ignore the First Amendment when it comes to copyright issues. Hopefully not, but it does feel like there’s significant cognitive dissonance going on when it comes to the intersection of copyright law and the First Amendment.

Filed Under: california, first amendment, free speech, supreme court, violent video games