Monday’s ruling that video games are protected under the First Amendment was the culmination of a long fight. And the victory was clearly a solid one for the industry.
But in reading through the 90-plus page decision and dissenting opinions, there are some interesting arguments – both for the industry’s rights and those of parents. Much like the oral arguments of last November, Justices were split on the possible differences in interactive and passive forms of entertainment and the First Amendment issues at hand.
Ultimately, of course, the majority ruling will stand for some time – as video game opponents try to make hay from the dissenting opinions. It’s a fascinating read – and well worth the time of anyone even remotely interested in First Amendment issues as they pertain to the entertainment industry.
In the meantime, here are some selected highlights from each:
From Justice Scalia’s Opinion of the Court:
The free speech issue: “Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And ‘the basic principles of freedom of speech … do not vary’ with a new and different communication medium.”
On protecting children from violence: “California’s argument would fare better if there were a long standing 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.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”
On doubts about a lasting psychological impact: “The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent videogames and harmful effects on children. These studies have been rejected by every court to consider them,6andwith good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flawsin methodology.” They 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. Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media.”
Taste vs. Constitution: “Disgust is not a valid basis for restricting expression.”
From Justice Alito’s concurring opinion (which was much more narrow than Scalia’s ruling):
On the difference between books/TV and games: “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.”
Fears that today’s ruling doesn’t look far enough ahead: “Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage. … It is predicted that it will not be long before video-game images will be seen in three dimensions. It is also forecast that video games will soon provide sensory feedback… Some amici who support respondents [people who sided with the gaming industry] foresee the day when “‘virtual reality shoot-‘em-ups'” will allow children to ” ‘actually feel the splatting blood from the blown-off head’ ” of a victim…”
On whether there’s wiggle room for better-defined legislation to have a chance at passing: I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so. … I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.
From Justice Thomas’s dissenting opinion:
Why he disagrees: The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.
The First Amendment doesn’t apply to children: The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents. … Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today. ‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.”
From Justice Breyer’s dissenting opinion:
Despite accusations otherwise, the California law isn’t vague: “In my view, California’s statute provides “fair notice of what is prohibited,” and consequently it is not impermissibly vague. … Why are the words ‘kill,’ ‘maim,’ and ‘dismember’ any more difficult to understand than the word ‘nudity?'”
It’s also not trying to ban these games: ” California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.”
Today’s ruling could make things more confusing: “The majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
The case is about education, not censorship: This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.”