The Supreme Court on Monday struck down on First Amendment grounds a California law that barred the sale of violent video games to children. The 7-to-2 decision was the latest in a series of rulings from the court protecting free speech, joining ones on funeral protests, videos showing cruelty to animals and political speech by corporations.
Justice Antonin Scalia., writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association (2011), said the court refused to create a new category of speech beyond the protection of the First Amendment. Depictions of violence, he said, have never been subject to government regulation.
The fact that the law tried to protect children, Justice Scalia added, did not alter the analysis. Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion.
Justice Samuel A. Alito Jr. voted with the majority but did not adopt its reasoning. His concurrence was joined by Chief Justice John G. Roberts Jr. Justice Alito said the California law was too vague even though it was meant to address an authentic problem. A more carefully crafted law, he wrote, might survive constitutional scrutiny.
Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Justice Thomas said the Constitution did not protect minors’ free speech rights while Justice Breyer said the statute survived First Amendment scrutiny.
The case was rather straight forward and, as I predicted back in March, it wasn't even close. It continues a long line of decisions the court has made the past few years upholding and strengthening the 1st amendment.
But Thomas' dissent was one of the more bizarre ones he's ever issued. Taking a hard turn back to the 18th century, Thomas recites the history of childhood, defends parens patriae and in loco parentis, and argues why Ex Parte Crouse (1838), which basically concluded that children aren't considered people under the constitution (and established a "hands off" doctrine regarding children and legal rights that lasted until 1966), should be the law of the land once again. He even defends good old patriarchal families.
The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It 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) without going through the minors’ parents.He even lauds Thomas Jefferson's parenting skills as a model for how children were treated then and how they should be treated today.
In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz. Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.”
This conception of parental rights and duties was exemplified by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters constantly and often gave specific instructions about what the children should do (Letter to Martha Jefferson).Funny, but he makes no mention of Jefferson's "approach to raising children" in regard to Sally Hemings or all those kids.
Scalia rips him apart in the majority.
Justice Thomas denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors.Scalia also rips Alito, who joined in the decision but filed a lengthy concurrence disagreeing with the proposition that violent video games aren't a problem. In it he lists a variety of gruesome activities kids can do while gaming, but Scalia says:
JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description 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.Couldn't have said it better myself. While I agree with the spirit of Alito's concurrence (that some of these games are so depraved as to meet an obscenity definition and thus be subject to the Miller test), Scalia is correct in listing this latest ban right along side the comic book bans of the 1950's and other moral panic. The fact is, the evidence linking violent media and violent actions among impressionable kids has never been more than correlational.
JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy,and restrictions upon them must survive strict scrutiny.
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 video games and harmful effects on children. One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.Going back further than the Wertham studies, he also lists the long line of violence and weirdness kids were exposed to in the earliest of fairy tales.
These studies have been rejected by every court to consider them,6 and with 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 flaws in methodology.”
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 in-deed. 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.Good times. Check out the various opinions and even Thomas' dissent (which while otherworldly is a pretty good history of how our modern conceptions of childhood developed).
The first amendment lives, for another day anyway.