In a 7-to-2 decision, the high court declared that the state statute violated the protections of the First Amendment by attempting to carve out an entirely new content-based regulation of speech that would apply only to depictions of violence directed at children.
“That is unprecedented and mistaken,” Justice Antonin Scalia wrote in the majority opinion.
“No doubt a state possesses legitimate power to protect children from harm,” Justice Scalia said, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.”
The decision means teens in California will continue to be able to purchase without parental approval such blood-soaked extravaganzas as Postal 2, Manhunt, and MadWorld. It leaves in place a voluntary video-game labeling system.
The majority justices rejected the view that special First Amendment considerations should apply when dealing with an emerging technology that permits teens to interact in lifelike scenes of gruesome mayhem.
“Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears,” Scalia said.
Although he concurred with the outcome, Justice Samuel Alito wrote separately to urge his colleagues to “proceed with caution.”
“We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time,” he wrote in a concurrence joined by Chief Justice John Roberts.
The majority opinion, he said, concludes that a teen spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is no different from that same teen reading a description of violence in a work of literature.
“The court is sure of this: I am not,” Justice Alito wrote. “There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”
At issue in Brown v. Entertainment Merchants Association (08-1448) was a 2005 law aimed at helping parents monitor the content of their children’s video games. State lawmakers had cited studies showing that extremely graphic video games, featuring what the state called “deviant violence,” fostered aggressive antisocial behavior in some minors and were capable of causing psychological or neurological harm.
Supporters of the law said it was similar to a New York statute, upheld by the Supreme Court in 1968, restricting the sale of sexually explicit materials to minors. The court ruled in the New York case that the state could regulate the sale of non-obscene sexual materials (like Playboy magazine) to minors without violating broader free-speech protections.
The majority justices refused to extend the same rationale to violent video games in California. The regulation of video games, the justices said, was different from the regulation of graphic sexual material.
“Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity for minors,” Scalia said.
In a dissent, Justice Stephen Breyer said the majority opinion creates a “serious anomaly” in First Amendment law in which a state can ban the sale to minors of depictions of nudity, but not the most violent interactive video games.
“What sense does it make to forbid to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that same 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?” Justice Breyer wrote.
“What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman – bound, gagged, tortured, and killed – is also topless?” Breyer said.
Scalia said that unlike limits on access to sexual material, there is no longstanding tradition in the United States of restricting children’s access to depictions of violence.
He cited Grimm’s Fairy Tales. In “Snow White,” the wicked queen is made to dance in red-hot slippers until she falls dead on the floor. Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel kill their captor by shoving her into the oven.
The majority also rejected as inconclusive studies of the harmful effects of extremely violent video games.
To satisfy free-speech protections of the First Amendment, California must be able to justify its law as necessary to address a serious problem. The state must also demonstrate that the statute is narrowly tailored to address the problem.
“California cannot meet that standard,” Scalia said. “At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors.”
The California violent video-game law was struck down by lower courts and has never been enforced. Businesses would face a fine of up to $1,000 per violation – for selling or renting to someone under age 18 a video game deemed excessively violent by state officials.
The Entertainment Merchants Association, a trade group, argued that businesses producing, selling, and distributing violent video games have a First Amendment free-speech right to sell or rent the games without government regulation. The video-game industry has voluntarily enacted its own rating system to identify games with violent and/or sexual content.
California argued that the video violence law was necessary to help parents understand the content of their children’s games and to protect youths from harmful influences.
But the majority justices said the effort concerning harmful influences was underinclusive.
“The California legislature is 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 said. “This is not how one addresses a serious social problem.”
The majority justices included Scalia, Chief Justice Roberts, Alito, Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. In addition to Breyer, Justice Clarence Thomas filed a dissent.