First off, let me say that rarely can I combine my Constitutional fetish with my passion for video games. But this is one case in which it is totally relevant.
Now, to the point, this has been a long time coming. The Supreme Court of the United States heard a case regarding a California law, below:
California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746–1746.5 (West 2009) (Act), prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A). Violation of the Act is punishable by a civil fine of up to $1,000. §1746.3.
Emphasis is mine. Once again, politicians trying to legislate what is acceptable speech, and more, what is or is not art. Which the latter point shouldn't even be relevant, as the First Amendment protects all speech, not just 'speech of value'. Justice Scalia delivered the Opinion of the Court. (Click
here for the official ruling.) Some quotes below:
California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000).
Good stuff. Scalia clearly understand the intent of the law, and what Free Speech truly means. More:
The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.
Snip.
That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville, 422 U. S. 205, 212–213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640–641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “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.” Erznoznik, supra, at 213–214.3
If you don't read the entire opinion yourself, the
Stevens case referenced occurred last year, when the SCOTUS ruled that though animal cruelty itself can be banned, the possession of pictures, art, etc, depicting animal cruelty is speech, not an act in an of itself, and is protected under the First Amendment. More:
California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-ownadventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.
Well reasoned and thought out, and something I had never considered. This is rapidly making Scalia my First Amendment hero of the day. More still:
JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—butdisgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“ ‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.
Bam. A wall of truth right there. Ok, one last quote, then I'll save you from the Wall of test this post has become. If you want the rest, read the full opinion.
And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.
This last bit I find very interesting. He asserts the First Amendment Rights of young people! Schools across the nation, if they're paying attention, just felt a disturbance in the force. Having gone through public schools, and looking to be a public school teacher, the biggest problem wasn't, in my opinion, creativity, curriculum, teachers, or any of the stuff you hear about on TV. It's the tendency of administrators, in an attempt to keep the kids easy to control an docile, to discourage free speech and individuality at every opportunity. A highly individualized society is hard to maintain and control in and orderly manner, and administrators tend to stamp out expression whenever it ruffles feathers, simply to avoid hassle.
Yet here, in an opinion supported by five, that's FIVE, SCOTUS Justices, they affirm that minors have a right to Free Speech as well! (Alito wrote a concurring opinion in which Roberts joined.) I think that last little chunk there is one of the most interesting and significant bits to come out of the ruling.
All in all, a good day for the First Amendment. I would strongly suggest anyone interested in the First Amendment rights of video games read Justice Scalia's full Opinion. It's well thought out, well reasoned, backed by precedent, and all around solid. A great read. Yes, a court Opinion is a great read.
Very happy.
