From an ideological standpoint, today’s Supreme Court decision in the case of Brown (formerly Schwarzenegger) v. Entertainment Merchants Association is fascinating.
You’ve got Antonin Scalia writing the majority opinion in a 7 – 2 case. You’ve got Scalia throwing a barb at the merely concurring Samuel Alito. You’ve got Clarence Thomas dissenting from an opinion Scalia wrote. (Can somebody tell me how many times that’s happened? What if I put the over/under at 9 times, ever?) And you’ve got Justice Breyer arguing against First Amendment Protections in a barely safe for work way.
And all of this happens to defend my right to walk into a Russian airport and gun down my enemies. I really hope I live long enough to see a Supreme Court with nine people who have all at least fired the Duck Hunt gun before they’re asked to rule on violent video games…
The Court’s ruling strikes down a California law that prevented “violent” video games from being sold to children. From the New York Times:
Justice Antonin Scalia, writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, 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.
But Scalia had a little heat for Alito. Josh Blackman’s Blog pulls out some nuggets from a decision that is way too long for anybody who has had their attention spans ruined by video games:
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—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature.”
Can we PLEASE get a Mortal Kombat v. Dante’s Universe game? Please? Look, Virgil just got hit with Freeze. Sub-Zero, FINISH HIM.
In any event, Clarence Thomas dissented. It seems his argument can be summarized as “f*** kids.” Thomas says the Constitution doesn’t protect the right to speak freely to minors or for minors to access speech. In other news, I just hit my baseball in Justice Thomas’s yard, but I’d rather go home and play a violent video game than retrieve the ball.
Justice Breyer has the most interesting dissent:
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 13 year-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 restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?
A First Amendment presided over by a deeply hypocritical and prudish court, Justice Breyer. Truly, our society barely bats an eye at sick and depraved violence. But show a nipple, and watch the court flip 7 – 2 the other way.
Of course, I think the solution isn’t to get more hysterical and protective over violence. It’s to get less ridiculous about sex.
That way, you’ll get 15 year olds who say, “I didn’t buy the torturing the topless prostitute game because it was a stupid game,” as opposed to saying, “you have to play the topless torture game because it’s so badass the government is trying to ban it!”
Justices Reject Ban on Violent Video Games for Children [New York Times]
Instant Analysis: Brown (Formerly Schwarzenegger) v. EMA [Josh Blackman's Blog]