No doubt everyone has heard the good news out of the Supreme Court last week. Video games are saved from government censorship based on violent content,
First off, in determining whether a law restricting expression is constitutional, the Court must examine whether or not the subject matter to be restricted is in fact “speech” for First Amendment purposes. If so, the Court will see whether the law in question is regulating a pre-existing category of unprotected speech like incitement or obscenity. Upon finding that the law is restricting speech that is not unprotected, the Court will go on to examine whether the regulation is based on the content or the message of the speech, or if it is simply regulating the time, place, and manner in which the speech can be performed. If the law turns out to be based on the former, then the government has quite the heavy burden of proving that it passes a test called Strict Scrutiny—which is perhaps the most difficult constitutional test in American jurisprudence (and for good reason). I will go into more detail on Strict Scrutiny below.
The Supreme Court has finally acknowledged the status of video games as having as much expressive value as film, television and books and as deserving of the same protection under the Constitution. Acknowledging that many games contain political speech and social messages as well as being entertainment, Scalia writes: “…it is difficult to distinguish politics from entertainment, and dangerous to try.”
After a history lesson on the failures of historical crusades against violent books, films, and comics, the Court dismisses
Though the freedom of speech found in the First Amendment is far-reaching and wonderful, it is not absolute. Over the years, the Supreme Court has carved out a handful of very specific categories of speech that are not protected by the Constitution. This includes the incitement of imminent unlawful activity, fighting words (face-to-face insults causing a breach of the peace), defamation, and sexual obscenity (to name a few). The law at issue in this case seeks to create a new category of speech (a task that has historically been reserved only for the Supreme Court itself), namely the depiction of violence when distributed to minors.
Last year, in the case of United States v. Stevens, the Supreme Court held that new categories of subject matter cannot be added to ranks of unprotected speech by a legislature who has deemed them too harmful to be tolerated. In that case, Congress had passed a law purporting to strip First Amendment protection from depictions of animal cruelty. The Supreme Court struck down the law, saying that the idea that a legislature could do so by “weighing the value of a particular category [of speech] against its social costs and then punishing it if it fails the test” is “startling and dangerous.” At GamesLaw, we predicted that the outcome of Stevens would have an effect on the Brown case (then called EMA v. Schwarzenegger). As predicted, the Court declared that Stevens controls this case. Therefore,
The Supreme Court itself would not acknowledge violence as a new category of unprotected speech because there was a lack of historical basis for doing so. All throughout our history we have given children violent books to read. Scalia specifically cites examples from Grimm’s Fairy Tales including the ending to Snow White describing the villain being forced to dance in red-hot shoes until her death, and Cinderella, wherein the step-sisters have their eyes pecked out by birds after (my favorite) cutting off parts of their feet to try and fit into the glass slipper. Because of this, it can hardly be argued that the dissemination of violent material to children was an evil that the country has always been wary of and wanted to prevent. Acknowledging Justice Alito’s findings that many games’ depictions of violence were “disgusting”, Scalia points out that “disgust is not a valid basis for restricting expression.”
The monumental task of passing the Strict Scrutiny test can only be accomplished if a content-based regulation of protected speech is narrowly tailored to serve a compelling government interest. Examples of such interests are national security and public safety. The language of the test varies a bit, and interestingly in this opinion Scalia’s formula puts the need for a compelling state interest ahead of the need for narrow tailoring. This foreshadows his discussion and findings that
California’s other interest is to help parents who want to keep violent games out of their kids’ hands to do so—in effect, the state would keep an extra eye on the children whose parents could not monitor all of their purchases. However, the voluntary ESRB ratings as well as the cooperation of retailers in enforcing the age restrictions accompanying the ratings accomplish this goal for the most part—a result that has been confirmed by the Federal Trade Commission. Even though some M-rated games slip through the cracks into minors’ hands, “[f]illing the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.”
Even assuming hypothetically that the assistance of parents in sheltering their children from violent video games is compelling,
Justice Alito does not agree with the majority’s reasoning as articulated in Scalia’s opinion and so he wrote his own, the dicta (reasoning and conclusions) of which can also be persuasive to courts in the future. Although long, the opinion can be summed up quite simply as this: The contested law does not define “violent video games” clearly enough to give the public notice of the specific conduct and depictions that are allowed and disallowed, and is therefore void for vagueness.
This is the case we’ve all been waiting for. I personally dreamed about arguing a case like this in my teenage years as I watched the anti-FPS and -GTA crusades unfold, and the prospect of protecting the game industry from censorship is what made me decide that I wanted to be an attorney. Now that the battle is fought and won, I’m ecstatic to see games finally being recognized by our highest Court as a legitimate art form deserving of every bit as much of the Constitution’s respect as time-honored literature (albeit I am a little sad that I didn’t get to participate in the suit myself). Because of my special interest in the intersection of games and the First Amendment, I have spent the past two years writing about this case for GamesLaw and am truly honored that I was able to help people understand it better and take part in robust discussions. I’d like to give a huge hats-off to all of the attorneys who represented the industry as well as the judges and Justices who have upheld a centuries-old founding principle in the face of rapidly advancing technology.
GP: Thanks to Elizabeth Surette, a Massachussetts attorney, for writing this article, and Dan Rosenthal, a Maryland attorney, for editing it. Surette and Rosenthal both focus their practices on the games industry.