William Bennett Turner
July 10, 2011
As each new medium of communication has come on the scene -- from dime novels to movies, comic books, television, music lyrics, the Internet, and now video games -- government has attempted to shield America’s children from its corrupting influence. Every attempt has failed.
On June 27, the Supreme Court decided that a California law prohibiting the sale of violent video games to minors violated the First Amendment. Shielding kids from exposure to extreme violence presented a contentious issue. But rather than the usual 5-4 conservative-liberal split, the 7-2 vote divided the Justices in ways few could have expected.
Justice Antonin Scalia, politically very conservative, wrote the majority opinion, joined by three “liberals” plus Anthony Kennedy, politically conservative but the strongest First Amendment voice on the current Court. Two other rockribbed conservatives, Joseph Alito and Chief Justice John Roberts, agreed that the law was invalid (too vague) but disagreed with Scalia’s analysis. Justice Clarence Thomas parted company with his conservative soulmate Scalia and dissented. Stephen Breyer, who usually passes for a liberal, also dissented. What’s going on here?
James Madison may have been surprised to learn that the First Amendment protects not just political speech but popular entertainment. Noting that protected fiction, plays, movies, and now video games all communicate ideas (using characters dialogue and plot), Scalia said “it is difficult to distinguish entertainment from politics, and dangerous to try.”
So, applying standard First Amendment analysis, Justice Scalia found that the state law wasn’t carefully tailored to serve a compelling government interest. He said the law was underinclusive in that the state couldn’t control kids’ exposure to violence in Saturday morning cartoons, television, movies, books or even fairy tales (noting that Grimm is sometimes vividly “grim”), and Scalia said with characteristic sarcasm that California was “perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK.” Scalia clearly didn’t think playing violent video games seriously corrupted American youth.
His usual conservative ally Joseph Alito strongly disagreed. Alito did his own research into some of the most notorious games and found the violence “astounding.” He noted that “victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces….Blood gushes, splatters, and pools.” Alito revealed his personal revulsion at the immorality taught by some of the games: “There is no antisocial theme too base for some in the video game industry to exploit,” pointing to games allowing the player to reenact the murders at Columbine and Virginia Tech, the assassination of President Kennedy and engage in ethnic cleansing by choosing to “gun down African-Americans, Latinos, or Jews.”
Scalia acknowledged that “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.” But he said these differences are not constitutional ones: “Justice Alito recounts all these disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression.” Neither is the fact that some of the games teach immoral lessons (it’s fun to kill innocent people or maim those unlike you). It’s likely that both the California Legislature and Justice Alito were animated more by their moral objections than by the prospect of actual harm caused to young gamers.
Justice Scalia also parted company with his “originalist” ally, Clarence Thomas. Scalia and Thomas say the Constitution should be interpreted according to the way the 18th Century Framers understood it, and its meaning does not evolve with changing times or technology. Thomas wrote a long, impassioned dissenting opinion, concluding that history showed the Framers would not have protected speech directed at children that their parents wouldn’t want them exposed to. Scalia brushed this off in a footnote. Without abandoning his own originalist viewpoint, Scalia said Thomas’s thesis that children don’t have “any constitutional right to speak or be spoken to without their parents’ consent” was without “historical warrant” and, in any event, the California law didn’t enforce parental authority over children’s speech; it supplanted it with government authority.
Justice Stephen Breyer, relatively liberal on most issues, is the weakest member of the Court in First Amendment cases. Breyer was concerned about some psychological studies indicating that playing violent games seems to affect kids’ feelings of aggression, and was reluctant to say the state legislature couldn’t rely on them. He acknowledged that no one has shown any causal effect between playing the games and actual aggression, and that many studies contradict the ones he dug up. As usual, Breyer was too willing to give government the benefit of the doubt. That’s always dangerous in a First Amendment case.
How to explain the scrambling of the Justices’ usual political leanings? These hard First Amendment cases, presenting clashes of free speech with other societal values, have little to do with partisan politics. Rather, they concern one’s tolerance for expression that really disturbs many people, and one’s trust in government to make sound judgments about what’s good for us. Unwillingness to accept offensive, unsettling speech, and faith in government’s ability to sort out worthy from unworthy speech, are the end of free speech. The video games decision is a good reminder of this.