The US Supreme Court ruled today, 7-2, violent video games are protected by the First Amendment and California had no right to pass a law that banned the sale of such games to people under 18. The majority judgment was written by that noted sarcastic wordsmith, Antonin "Nino" Scalia, with Sam Alito writing a concurrence. The dissenters were Clarence Thomas and, in a bit of a surprise, liberal Stephen Breyer.
In oral arguments, California conceded the first part -- about free speech -- but it had argued that it had a duty to protect minors from being exposed to content that is often graphically violent as well as sexually explicit or even degrading. However, Scalia said not only was that a stretch of the imagination -- pointing out kids have ready access to such content on the Internet as well as as video game parlours and movie houses that do not strictly enforce the "recommended age" rules -- but that it placed the state in the place of the parent. For instance, in a footnote, Scalia made fun of Thomas' suggestion that a law could be passed that would require a parents' permission to buy such a game. Taken to its logical conclusion, Scalia wrote, what Thomas was suggesting is that it could allow a parent to forbid a child from attending a rally calling for the abolition of corporal punishment if they didn't have a "permission slip." Scalia makes the point further by referring to classical pieces of literature -- Hansel and Gretel baking their captor in an oven, Odysseus grinding out the eye of a cyclops, and that "Grimm's Fairy Tales are grim indeed."
Thomas, as usual in his dissents, makes no sense -- basically he said the First Amendment was never intended to be applied to video games. Well, the concept for television wasn't conceived until 1881 and it wasn't commercially available until the 1920s! The Founding Fathers could never have dreamed of television, let alone interactive video games. (You can read it for yourself at the link above and judge for yourself.
Breyer applies the "void for vagueness" doctrine and makes a somewhat plausible argument on how the law could be sustained, saying that qualitatively the California law was really not that much different from a New York State law upheld back in 1968 by a much more liberal court (this one regarding access to erotic and pornographic films by minors). To the argument that a centerfold in, say, Playboy, is just as easily accessible to a 13 year old as a video game depicting the rape of a woman, Breyer basically invokes Oliver Wendell Holmes Jr.'s "fire in a crowded theatre" -- that the live or simulated depiction of a violent act against is bound to have much more of a negative effect on a minor than a mere picture of a woman posing full frontal nude for fun. If there is no artistic merit, therefore, it would be illegal. (Breyer attaches a whopping 15 page bibliography to his 19 page dissent.)
It's a fair argument and a much better one than Thomas makes, but on this issue I agree with Scalia and Alito. Extreme violence should be of concern to us all, especially violence against women. But the First Amendment means what it says, and says what it means -- and even if the law was constitutional kids would still find a way to access and play the games. There is after all that thing called the black market. If a game is so grossly out of community standards, then even liberals will join a boycott and the game will be pulled from the market. It's that simple. Let the marketplace decide -- not the government.
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