The Supreme Court ruled today that a California law that would have banned the sale of violent video games to minors is unconstitutional, because it violates the First Amendment rights of minors. The case shows that when it comes to kids, the high court treats images of graphic violence very different than sexual images.
Neither side questioned that video games, including violent ones, are protected by the First Amendment. But California lawmakers thought they could make a narrowly tailored bill to restrict kids’ access to that material; for seven of the nine Supreme Court justices, the restriction wasn’t nearly narrow enough.
The law might have stood a better chance if there was a longstanding tradition in the U.S. of keeping violent stories out of the hands of children. But there is no such tradition, writes Justice Antonin Scalia in the majority opinion:
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 jeal- ousy.” 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.
If material is protected by the First Amendment, then they can only be kept out of the hands of minors under very specific circumstances, and the state of California does not have “a free-floating power to restrict the ideas to which children may be exposed,” states the majority.
(For non-gamers, if you want an idea of the kinds of games that were raising concerns-consider the game cited in Justice Steven Breyer’s dissent, which features “a character who shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head.”)
This case dates to 2005, when in the wake of media attention to violence in games like Grand Theft Auto, the California legislature passed a bill that would have banned the sale or rental of violent video games to children, unless they were accompanied by a parent. But the law never went into effect, and now it never will. It was quickly challenged in court by the Entertainment Merchants Assocation, a trade group representing video-game sellers. The group had won a court victory in 2007, when a San Jose federal judge found the California law unconstitutional. EMA won again on appeal, but then-governor Arnold Schwarzenegger appealed to the U.S. Supreme Court.
The California law tried to model itself in a way that made it similar to obscenity laws, a smart strategy since the Supreme Court has ruled that laws to keep obscene material out of kids’ hands are permissible. But the legislature can’t simply throw other kinds of speech it might have a problem with into the same category, and “create new categories of unprotected speech,” the high court stated.
The vote was 7-2, with Justice Breyer and Justice Clarence Thomas dissenting for different reasons.
It’s clear from Breyer’s opinion that he’s bothered by the Supreme Court’s willingness to use state power to keep pornographic images out of kids’ hands, while refusing to allow any regulation of games that display graphic violence. He found the California law to be a “modest restriction on expression,” that banned nothing for adults and banned nothing for children, as long as their parents were involved with the purchase.
Breyer’s dissent is also interesting because it shows the argument over whether violent video games affect kids’ behavior is really not over. Backers of the bill have argued that violent video games can lead children to behave more aggressively; and although the courts as a whole have taken a skeptical view of the evidence supporting that, Breyer is clearly swayed by the social science supporting the idea that violent video games increase aggression.
Justice Thomas, on the other hand, argues that the First Amendment doesn’t stretch so far as to cover what kids access without their parents’ permission at all; the majority thoroughly demolishes that claim in a footnote on pages 7-8 of the opinion.
» Read the opinion in Brown v. Entertainment Merchants Association [PDF]