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Supreme Court says video games are protected free speech, California can't regulate sales of violent games: a complete analysis

Supreme Court says video games are protected free speech, California can't regulate sales of violent games: a complete analysis

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It's a landmark day for video games: the Supreme Court has held that games qualify as protected free speech, and that California's 2005 law banning the sale of violent video games to minors without parental consent is unconstitutional. Brown vs. Entertainment Merchants Association has been winding its way up to the Supreme Court ever since California passed 2005's Assembly Bill 1179, which regulated the sale of violent video games: the law was immediately challenged by video game companies, and both the California district court and the Ninth Circuit Court of Appeals held that it was unconstitutional along the way. Today, the Supreme Court agreed 7-2 with the lower courts, and Justice Scalia's majority opinion is thunderous in support of the proposition that video are games are to be afforded the same type of First Amendment protection as any other type of media. In his words:

Like the protected books, plays, and movies that preceded them, video games 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.

In the long run, that line will likely be the broad takeaway from this case, but there are some fascinating contours to the decision -- in many ways, California's law was held unconstitutional because it regulated violence, not sex. Had the California legislature written the exact same law banning sexual video games instead of violent video games, an entirely different set of laws would have kicked in, and Scalia seems to hint that the Court may have ruled differently. I don't think there's a better example of the sex / violence double standard we apply to the media in recent memory.

As usual, you'll find a complete analysis of the decision after the break, but I'm doing something a little different this time: when Ross found out I generally print out decisions to highlight and make notes on the interesting bits, he suggested that I use my annotated copy as an outline. So after the break you'll find the pages of the decision marked up with my notes and highlights, followed by the relevant analysis. There's also a PDF with my full annotations available, as well as the clean PDF from the Court itself, which includes the concurring opinion from Justices Alito and Roberts as well as the dissents from Justices Thomas and Breyer. So let's get started.

(A quick note on my highlighting scheme -- I've been using the same multi-color highlighting system since law school, which makes it easier to understand how a decision is constructed. Blue is procedure and arguments -- the things to which the court must react. Orange is the facts of the case, yellow is the relevant law and precedent, and pink is the court's holdings. Obviously I'm not too strict about it, but that's the general idea.)

The first part of the decision is short and straightforward: it lays out the history and language of California Assembly Bill 1179 and the procedural history of the lawsuit that immediately ensued. The fireworks then start in Part Two, where the Court underlines the notion that video games are protected free speech by noting that the government is traditionally only permitted to regulate certain "well-defined and narrowly limited" classes of speech like obscenity and incitement. The Court also recently held in United States vs. Stevens that states can't simply add categories of unprotected speech to the list through legislation, calling that a "startling and dangerous" proposition. So the California legislature wasn't allowed to just say "violent video games are gross" and ban them; it tried to make it look like violent video games were the same as obscenity, which is an unprotected class of speech states are allowed to regulate. Clever, right?

Not clever enough, according to the Court: the law is clear that "obscenity" only covers "depictions of 'sexual conduct,'" and that "violence is not part of the obscenity that the Constitution permits to be regulated... speech about violence is not obscene." That's about as blunt as it gets when it comes to free speech: states can regulate sex, but they can't touch violence. So it's not so much that video games were ruled to be protected speech, but rather that they weren't ruled to be unprotected speech like obscenity.

Since California couldn't just call violence obscene and get away with it, the state next argued that it was allowed to control speech directed at children. The Court took issue with that idea on several fronts, calling it "unprecedented and mistaken." Minors get the same First Amendment protection as anyone else, and only in certain special cases can the government restrict their access to protected free speech. And, of course, one of those cases is none other than obscenity, as highlighted in the 1975 Supreme Court case Erznoznik vs. Jacksonville:

Speech that is neither obscene to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

(Emphasis mine.) So the state can regulate depictions of sex it finds obscene for minors, but violence is fine... because it's not sex. Indeed, the Court supports this argument by rattling off a long list of violent children's stories and books, from Grimm's Fairy Tales straight through to Lord of the Flies, and then comparing the effort to regulate video games to failed efforts to regulate movies and comic books. This is fascinating and conflicted stuff: on the one hand Scalia is making a forceful case for treating video games exactly the same as any other literature or media, and on the other he's boldly highlighting the incredible disparity in American societal attitudes toward sex and violence. The tension between the two informs the entire decision.

Part Two wraps up by noting that merely being interactive is not reason enough for video games to be treated as a special case -- the Court notes that Choose Your Own Adventure books have offered interactivity since at least 1969, and that "all literature is interactive" on some level. Finally, the Court notes that there are some "disgusting" video games that offer "astounding" violence, but says that "disgust is not a valid basis for restricting expression" -- the state has to show violent video games actually cause violence in order to regulate it. And that's a perfect lead-in to Part Three.

If Part Two was all about qualifying video games as protected free speech, Part Three is all about whether California's law constitutionally regulates that protected free speech. As you might expect, the answer is a resounding no. State restrictions on protected free speech must meet a constitutional standard called "strict scrutiny," which has long been defined as "justified by a compelling government interest and narrowly tailored to serve that interest." Strict scrutiny is a harsh test -- very few laws survive a strict scrutiny analysis, and Assembly Bill 1179 is not one of them.

The Court first notes that there's never been a conclusive link between exposure to violent video games and harmful effects on children, and the various studies California relies on to show such a link have been repeatedly rejected by the courts because they "do not prove that violent video games cause minors to act aggressively." (Italics in original.) In other words, violent video games would have to directly cause a social problem in order for the state to regulate them, and there's no proof of that here. In fact, it's the opposite: the studies show that Bugs Bunny cartoons, E-rated games, and even just static pictures of guns invoke the same reactions in children as violent video games. The Court says that California's law is thus "underinclusive" in focusing only on games -- it's not focused on the harmful effects of violence, it's focused on video games, and that's not allowed. To quote:

California has singled out the purveyors of video games for disfavored treatment -- at least when compared to booksellers, cartoonists, and movie producers -- and has given no persuasive reason why.

The Court also says that the Act is underinclusive because it allows minors access to video games with the permission of an adult, without requiring any proof of that relationship at the time of sale. Here's Scalia again:

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. [...] That is not how one addresses a serious social problem.

That's pretty classic Scalia sarcasm right there -- I was beginning to worry he'd lost his touch.

The Court then notes that the video game industry already provides parents with ratings and tools to restrict their children from accessing certain types of content, and that the ESRB ratings have been extremely effective in helping parents make decisions -- in fact, the FTC has found that the video game industry "outpaces the music and movie industries" in keeping minors away from mature content. Since it's already difficult for minors to get access to M-rated games and parents can easily evaluate the games their kids are playing using ESRB ratings, California can't justify restricting free speech in order to fill "the remaining modest gap in concerned-parents' control." Restricting free speech is more or less the nuclear option, and the Court simply doesn't think the current situation demands such drastic measures.

Lastly, the Court draws a distinction between two classes of parents -- those who think violent video games cause harm, and those who think they're harmless fun -- and notes that California's law is overinclusive because it abridges the rights of those parents who think violent video games are harmless. According to the Court, the law's "entire effect is only in support of what the State thinks parents ought to want." That's not "narrowly tailored," as the Constitution requires -- and that's the last nail in the coffin for Assembly Bill 1178. Tony, you have a pithy wrap-up line for us?

Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

Sounds about right to me. Now -- someone make a sexy violent video game and let's see what happens, shall we?

P.S.- Not to toot our own horn here, but the TIMN crew has officially been cited by the Supreme Court: Footnote 11 in Justice Alito's concurrence is a 2008 Josh Topolsky post about the Mindware V5 electric force-feedback device. I am extremely jealous.

Supreme Court says video games are protected free speech, California can’t regulate sales of violent games: a complete analysis