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Video Games, Even Violent Ones, Are Protected by the First Amendment

By Marie-Andrée Weiss

The U.S. Supreme Court decided by 7 to 2 in Brown v. Entertainment Merchants Association that video games, even violent ones, are protected by the First Amendment.

Representatives of the video game and software industries had challenged a California statute barring selling violent video games to minors. The U.S. District Court for the Northern District of California concluded that the statute violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed, and the Supreme Court granted certiorari last year.

Justice Scalia, writing for the majority, affirmed that:

"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."

This decision is not surprising if one remembers that the Supreme Court struck down last year in U.S. v. Stevens a federal law criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," holding the law to be an impermissible content-based restriction on speech. Justice Scalia wrote that Stevens controls Brown.

Indeed, both laws are similar. Just as the federal law in Stevens, the California law prohibits the depictions of unsavory acts, not the actual commission of these acts. Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) prohibits the sale or rental of "violent video games" to minors, that is, video games which would feature "killing, maiming, dismembering, or sexually assaulting an image of a human being." Disgusting acts indeed,"but disgust is not a valid basis for restricting expression", wrote Justice Scalia.

Indeed, "as a general matter ... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" (Ashcroft v. American Civil Liberties Union, 2002). There are however some exceptions and the content of speech may be restricted in a few limited areas, such as obscenity and fighting words.

The California statute only prohibits video games depicting such acts "in a manner that ... [a] reasonable person ... would find appeals to a deviant or morbid interest of minors, [or]... is patently offensive to prevailing standards in the community as to what is suitable for minors, [or if] the game, as a whole ... lack[s] serious literary, artistic, political, or scientific value for minors." Yet Justice Scalia wrote, somewhat caustically, that "mak[ing] violent-speech regulation look like obscenity regulation... does not suffice" as the obscenity exception to the First Amendment only covers depictions of "sexual conduct" (Miller v. California, 1973).

Speech about violence is not obscene, and therefore protected by the First Amendment, even though the California statute "mimics" a New York law prohibiting the sale to minors of sexual material that would be obscene from the perspective of a child, which the Supreme Court upheld in Ginsberg v. New York (1968). Justice Scalia noted that the United States does not have "a longstanding tradition... of specially restricting children's access to depictions of violence..." and added that children's books, such as the famous Grimm's Fairy Tales "contain no shortage of gore," reminding us that "Hansel and Gretel (children!) kill their captor by baking her in an oven."

Since the California statute imposes a restriction on the content of protected speech, the standard of review was strict scrutiny, and thus the statute must be justified by a compelling government interest and be narrowly drawn to serve that interest. California could not however, convince the Court of a direct causal link between violent video games and harm to minors, nor could it convince that the statute restrictions were justified by the substantial need of parents wishing to restrict their children's access to violent video games but who are not able to do so.

The opinion can be found at http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

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This page contains a single entry from the blog posted on June 28, 2011 12:29 PM.

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