The U.S. Supreme Court, wrapping up its current term, has struck down California's ban on the sale of violent video games to children. A divided court majority said the law violates the Constitution's guarantee of free expression.
In 2005, California enacted a law that imposed a $1,000 fine on retailers any time they sold a violent video game to a minor. The state cited social science studies that it said showed kids who play these games for many hours are desensitized to violence and become more aggressive in their behavior. But the U.S. Supreme Court rejected those arguments Monday, and struck down the law.
Technically, the court was split 7-to-2, but the various concurring and dissenting opinions more closely resembled a 5-4 split.
Writing for five members of the court, Justice Antonin Scalia said video games are like books, plays and movies, expression protected by the First Amendment, and the government has "no free-floating power" to restrict the ideas to which children may be exposed.
Violence Is Part Of Youth Entertainment
Since the founding of the republic, he said, the court has permitted restrictions on speech in only a few very narrowly defined areas — obscenity, incitement and fighting words. Violence cannot be "shoehorn[ed]" into any of these categories, Scalia said, even when the violent expression is consumed by children.
With great gusto, Scalia noted that there is "no shortage of gore" in the books parents routinely read to children. Grimm's fairly tales "are grim indeed," he observed; Cinderella's wicked stepsisters have their eyes pecked out by doves, and Hansel and Gretel kill their captor by baking her in an oven. In truth, said Scalia, California's ban on violent video games is just "the latest in a long series of failed attempts to censor violent entertainment for minors," be it dime-store novels, movies or even Superman comics, which, in their time, were portrayed as leading to juvenile delinquency.
The justifications offered in this case against violent video games, he said, are no better than those offered in the past against other forms of violent entertainment. "We do not mean to demean or disparage" parental concerns about violent video games, said Scalia, a father of nine and grandfather of 32. "Our task" is to determine whether the regulation of these games is valid under the First Amendment. "The answer plainly is no."
Joining him in the majority were Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — an ideological smorgasbord.
Children Need Protection
Defenders of the ban on violent video games were disappointed, but took credit for the tough labeling and sales restrictions that the video game industry voluntarily put into place after the law was enacted.
"I think we definitely hit the industry over the head with a 2-by-4," said James Steyer, CEO of Common Sense Media, a leading kids and media organization in the United States. "Over the last five or six years, the industry has become far more accountable and much more careful about selling those kinds of games to minors."
The court's majority opinion in the case took up just 18 pages and "reads as though this was the easiest case in the world to decide on straightforward free speech principles," said Marci A. Hamilton, a constitutional law professor at Cardozo School of Law.
The dissenting and concurring opinions, however, took up a grand total of 56 pages.
Two justices — Samuel Alito and Chief Justice John Roberts — concurred in the judgment to strike down California's law, but on much narrower grounds. They would have invalidated the law because the definition of prohibited violent games was unconstitutionally vague. But writing for the two, Alito said, "We should not jump to the conclusion that new technology is fundamentally the same as some older [form of speech] with which we are familiar."
Describing with horror some of the violent games he had found in his research, Alito said the court majority was acting "prematurely" in dismissing the possibility that these games could prove injurious to young people.
"In some of these games," wrote Alito, "the violence is astounding." He listed an arsenal of weapons used — "machine guns, shotguns, clubs, hammers, axes, swords and chainsaws" — and detailed the injuries that players can inflict — "[v]ictims are dismembered, decapitated, disemboweled, set on fire and chopped into little pieces. They cry out in agony and beg for mercy."
Alito even provided plot lines for some of the most disturbing games, including re-enacting the Columbine and Virginia Tech shootings and the 1963 assassination of President Kennedy, raping a mother and her daughter, raping Native American women and engaging in ethnic cleansing.
Founders Would Agree With The Ban
Justices Clarence Thomas and Stephen Breyer each dissented.
Thomas said the framers of the Constitution did not envision any freedom of speech at all for minors.
Referring to the "Puritan tradition" of child rearing in the 18th century and the "absolute authority" parents had over their minor children, Thomas said, "[i]t would be absurd to suggest that such a society understood the 'freedom of speech' to include a right to speak to minors (or a corresponding right of minors to access speech)."
But Justice Breyer's dissent took a different tack. He said the California law was "no more than a modest restriction on expression" and that the legislature –- and not the judiciary –- is best equipped to evaluate psychological studies on the effect of violent video games on youths.
"This court has always thought it owed an elected legislature some degree of deference," said Breyer, particularly on matters that "involve technical matters that are beyond our competence, even in First Amendment cases."
Free Expression Takes Priority
Monday's decision seems to send a signal that the court is not willing to chip away at the First Amendment in order to achieve other social policies.
"The answer that we're getting pretty clearly from a solid majority of the court is that" parental pressure, and market pressure, through labeling, are the only way to limit child access to these games, said Notre Dame law professor Richard Garnett. Regardless of "how harmful" these games may be, he said, "these are harms that the court seems to think that the First Amendment doesn't let the government solve directly through regulation."