On Monday, in a 7-2 decision, the Supreme Court in Brown v. Entertainment Merchants Association (formerly known as Schwarzenegger v. EMA) ruled that a California law purportedly banning the sale of violent videogames to minors violated the First Amendment. I have to admit: the majority opinion, written by Justice Scalia, really surprised me. The Court chose some pretty broad language to back up its decision (as I’ll explain, it didn’t actually have to), and it laid out some important new principles. Yes, the California law is no more, but that doesn’t mean everything is back to the status quo – in fact, due to the language it uses, this decision has wider implications that will affect not only games but also how we interpret the First Amendment from here on out. Overall, what are the most surprising takeaways from all this?
1. Videogames are protected speech under the First Amendment!
“Like the protected books, plays, and movies that preceded them, videogames 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.” – Justice Scalia
Above: They didn’t say games are “art” exactly, but that didn’t stop me from posting this picture
What the 7-2 vote count doesn’t tell you is that among the 7 Justices who voted to strike down the bill, 2 Justices (Alito and Roberts) had a completely different rationale for their decision. I’m in a particularly good mood today because I actually expected the Alito/Roberts rationale, which was significantly less favorable to games, to be the controlling one. See, Alito and Roberts want to strike down the California law because its definition of “violent videogame” is too vague and therefore doesn’t give adequate notice to game developers. They’re certainly right about the law’s vagueness, but striking down the law for being unconstitutionally vague is different (and much narrower) than saying the law is an unconstitutional infringement on free speech. Alito and Roberts aren’t willing to say that videogames are automatically protected as a medium under the First Amendment.
Above: Custer’s Revenge – Not all the judges are willing to say this game is expression worth protecting
On the other hand, the majority is. Scalia’s quote above makes it clear – videogames get First Amendment protection. That’s great! (That means we won’t have to see this case argued again in a year, with the legislators tweaking the language of the statute and trying to claim it’s no longer vague.) Unlike Alito and Roberts, who primarily write about the scary new ways technology will let us simulate killing people (“‘virtual reality shoot-‘em-ups’ will [someday] allow children to ‘actually feel the splatting blood from the blown-off head’ of a victim.”), the majority seems to understand that videogames have the capacity (however woefully untapped these days) to communicate ideas and social messages not related to the gleeful joy of the slaughter. Anyone who has ever shed a tear at Aeris’s death in Final Fantasy VII, contemplated the meaning of life after playing Jason Roher’s Passage, or rethought their political philosophy after a good round of Civilization 5, has known and whined about this fact for years. Given the (somewhat mistaken) public assumption that the Supreme Court Justices are a bunch of old fogeys, it’s nice to see a strong 5-Justice contingent that agrees on the potential of videogames to be more than just murder simulators.
But then again, look at the standard that the Court applied here. Any medium that communicates ideas (and maybe social messages) is protected under the First Amendment? Hmmm. (More on this later.)
2. These Scientific “Studies” California Used are Bull
Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent videogames are “about the same” as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play videogames like Sonic the Hedgehog that are rated “E” (appropriate for all ages), or even when they “vie[w] a picture of a gun.” – Justice Scalia
Even the majority seems to believe that violent media is strongly correlated with higher aggression in kids. I agree too: I’ll even go as far as to say I believe violent media increases aggression in nearly everyone. But what is it about videogames that makes them so much more dangerous in the eyes of California legislators (and a minority of Supreme Court Justices), making their censorship justified? According to Justice Breyer, “some of these studies take care to explain in a common-sense way why videogames are potentially more harmful than, say, films or books or television. In essence, they say that the closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm.” (emphasis added) The majority, however, was not convinced by these “common sense” explanations. Scalia writes that while the correlation between videogames and aggression may be scientifically proven, the scientific data that would prove videogames are uniquely more dangerous than other types of media is unpersuasive. I 100% agree with Scalia and the majority – I think Breyer drank the scientists’ Kool-aid on this one.
Of course, the fact that the court ignored the studies doesn’t make the studies false. Don’t go assuming that a Justice’s word invalidates a scientist’s research. Just know that the next time you’re at a dinner party and someone accuses videogames of poisoning people’s minds, you can pull out a picture of a gun and say it has the same effect. (Note: don’t actually carry a picture of a gun with you to a dinner party. People will look at you funny.)
Above: Thought control
3. Minors Have Rights Under the First Amendment – Even Without Their Parents’ Consent
“The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. –Justice Thomas, dissenting from the majority opinion
Yes Justice Thomas: the founding generation did not give rights of free speech to minors. However, after Monday’s ruling, our generation does.
Justice Thomas’s dissent spends pages discussing how the Framers had complete control over their offspring (at least legally speaking) and could command the children to do just about anything. According to Justice Thomas, a “stubborn or rebellious son” committed a capital offense if he disobeyed “the voice of his Father, or the voice of his Mother.” Of course, Thomas doesn’t say outright that he wants us to return to those “traditional” times, but his message is clear that minors were second-class citizens in the Framers’ eyes. I’ll grant him that. The Framers believed a lot of other things about “second-class citizens” that were kind of silly, but that’s not the point.
The point is, the majority in Brown v. EMA has conclusively settled that minors have a right under the Constitution to access speech without their parents’ consent. If this weren’t so, according to the majority, it might become “criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors.” Scalia writes that a law cannot abridge on the “freedoms” of children in this manner – it says a lot about where we’ve come since the 1700s that we now believe that children actually have “freedoms” in the first place.
Above: Score one for youth rights (source: photostock)
4. Americans Don’t Hate Violence, But Do Hate Sex. Deal With It?
“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 13year-old of an interactive videogame in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” –Justice Breyer, dissenting
As far as I’m concerned, this is a valid observation. However, I don’t think pointing out this fairly absurd double standard in obscenity law actually helps Justice Breyer’s argument. In fact… I think it may actually cut the other way. First, background: the Constitution was written and signed long before Roth v. United States – that was the case that first introduced the idea that “obscenity,” (defined then as “appeal[ing] to prurient interest” under “contemporary community standards”) would not be protected as “speech” under the First Amendment. Obscenity law and the cases that came after Roth were part of a purely court-created doctrine – nowhere in the text of the Constitution do the Framers specify any limitations on the types of communication that were protected under the First Amendment.
I’m inclined to believe that our general sex-negative obscenity laws are at least partially a product of our country’s Puritan origins, and not necessarily based in any interpretation of our Constitution. Breyer would suggest expanding obscenity law to cover violence, but he has no Constitutional basis for his assertion. As a result, his argument kind of backfires. He wants to make you think “Hey, we censor sex, let’s censor violence the same way!” In reality, the thought on my mind while reading Breyer’s dissent is “We ought not to censor violence because it disgusts us – maybe we ought not to censor sex because it disgusts us, either?”
Oh by the way, notice how I used the word “disgust” back there? There’s a reason for that:
5. “Disgust Is Not a Valid Basis for Restricting Expression”
“Justice Alito has done considerable independent research to identify videogames in which ‘the violence is astounding,’ ‘Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces . . . Blood gushes, splatters, and pools.’ Justice Alito recounts all these disgusting videogames in order to disgust us—but disgust is not a valid basis for restricting expression.”- Justice Scalia
This may be the single biggest surprise from this case. Then again, it’s not a complete blindside. Earlier this year, when the Supreme Court upheld the First Amendment rights of the Westboro Baptist Church (they were the ones protesting at soldiers’ funerals with “God Hates Fags” signs), it made the point that free speech rights are protected even when the speech is “hurtful and its contribution to public discourse may be negligible.” If there seems to be one area of agreement in the current Supreme Court, it’s that the First Amendment protects speech, even if it is unpopular. After this ruling, it would appear the First Amendment also protects speech that is “disgusting.”
As thrilled as I am that videogames are receiving First Amendment protection, this new development seems odd to me. It would seem that this decision strips away some of the philosophical underpinnings of obscenity law. After all, what is the difference, legally speaking, between what is “disgusting” speech and what is “obscene” (non)speech? Is there one? Isn’t all media that is obscene also disgusting? And if not, why are we so often prohibited from producing such media? (Want a real kick to the face? The Merriam-Webster online dictionary defines the word obscenity simply as “disgusting to the senses.”)
Above: Unquestionably disgusting, also unquestionably protected
It would seem that part of the old obscenity test – asking whether or not an obscene work is “without redeeming social value” – is no longer particularly relevant to the legal discussion, especially in light of the Supreme Court’s comments in the Westboro Baptist Church case. As much as I love videogames, I do not believe that all games have artistic merit. Not only that, but I do think that the level of self-professed “mindless” violence in some modern games is, at least colloquially speaking, obscene. But despite being “disgusting” even to the common eye, these games now get First Amendment protection.
It certainly seems that the current Supreme Court considers “speech” to be sacrosanct in all its forms, whether it is valuable to society or not. When viewed in light of the recent Citizens United case, I see a picture of the Supreme Court as extremely radical and surprisingly absolutist protectors of unregulated speech (even more than Supreme Courts usually are). As such, I think we’re in for some big changes in the near future. For one thing, this case will have a huge impact on the net neutrality debate, considering that the majority points out that “whether government regulation applies to creating, distributing, or consuming speech makes no difference” in determining First Amendment protection. If internet providers are seen as “speech distributors,” does that mean a government mandate telling them what they can and cannot carry is a content-restriction on speech? (For a more detailed look at Brown v. EMA’s impact on net neutrality law, check out Susan Crawford’s fascinating blog post on the subject.)
More generally though, we’re going to see some real challenges to the current obscenity doctrine. Laws that were designed to protect us from ideas and communication we found “disgusting” are going to have to deal with new challengers that use Brown as a jumping off point for their arguments. And while I hesitate to say that we’re heading for an age of completely open speech and freedom of sexual expression (“This is the dawning of the Age of Aquarius…”) my guess is that Brown is going to lead to some very racy cases making their way to the Supreme Court. Somebody call Larry Flynt – Free Speech cases are about to get way more… well, disgusting.