Current Events vs. Founding Documents

Free Speech and Violent Video Games

Posted by Mark Musselman on July 20, 2011

Constitution, first amendment, free speech, Judicial branch, supreme court

Entry 99   

Current Event

According to the New York Times;  June 27, 2011 (full article available on-line)
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WASHINGTON — The Supreme Court on Monday struck down on First Amendment grounds a California law that banned the sale of violent video games to children. The 7-to-2 decision was the latest in a series of rulings protecting free speech, joining ones on funeral protests, videos showing cruelty to animals and political speech by corporations.
TimesCast | First Amendment Ruling

Justice Antonin Scalia, writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, said video games were subject to full First Amendment protection.

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Depictions of violence, Justice Scalia added, have never been subject to government regulation. “Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, recounting the gory plots of “Snow White,” “Cinderella” and “Hansel and Gretel.” High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence.

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The definitions tracked language from decisions upholding laws regulating sexual content. In 1968, in Ginsberg v. New York, the court allowed limits on the distribution to minors of sexual materials like what it called “girlie magazines” that fell well short of obscenity, which is unprotected by the First Amendment.

Justice Scalia rejected the suggestion that depictions of violence are subject to regulation as obscenity. “Because speech about violence is not obscene,” he wrote, “it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in” the Ginsberg decision.

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Stevens did not involve speech directed to minors, but the majority said the California law’s goal of protecting children from seeing violence did not alter the constitutional analysis.

“No doubt a state possesses legitimate power to protect children from harm,” Justice Scalia wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion in the case.

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Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Justice Thomas said the drafters of the First Amendment did not understand it to protect minors’ free speech rights.

“ ‘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,” Justice Thomas wrote.

Justice Scalia, who shares with Justice Thomas a commitment to interpreting the Constitution in accord with its original meaning, parted ways with his usual ally on this point. “He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas.

Justice Breyer also dissented, saying the statute survived First Amendment scrutiny. He relied on studies that he said showed violent video games were positively associated with aggressive behavior.

“Unlike the majority,” Justice Breyer wrote, “I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children.”

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The US Supreme Court vs. The First Amendment

Founding Document

The Constitution, Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We the People:

The first amendment only limits Congress.  Justice Breyer sees those plain words it, he trusts the states to define the limits on speech, and he accepts the limits of the federal government’s power on this matter.   The other Justices were apparently focused more on judicial precedence.