“Mortal Kombat” and “Grand Theft Auto” for everyone!
On Monday, the Supreme Court of the United States struck down a California law that would’ve banned the sale or rental of violent video games to minors. In a 7-2 decision, the Court decided that not only are video games protected under the First Amendment, they also should be treated the same way as other forms of speech: “Like protected books, plays and movies, communicate ideas through familiar literary devices and features distinctive to the medium. And the basic freedoms of speech … do not vary with a new and different communication medium.”
The case, Brown vs. Entertainment Merchants Association and Entertainment Software Association, was argued last Election Day. (The plaintiff was changed when current California governor Jerry Brown replaced Arnold Schwarzenegger in January 2011.) The case challenged the legality of a California state law signed by ex-governor Schwarzenegger in 2005 that barred businesses from selling violent video games to minors. The Northern District of California Court and Ninth Court of Appeals both struck the law down on appeal.
As I said when discussing oral arguments of the case back in November, there were three main questions before the court: Are violent video games protected by the First Amendment? Is it constitutional to ban their sale to otherwise law-abiding minors? Are these video games obscene?
Although the Court focused on the obscenity portion of the case during oral arguments, the decision itself largely left that question alone, saying only that the California law is too vague and broadly drawn to pass the Miller test necessary to meet the obscenity standard. Then again, Associate Justice Antonin J. Scalia, who wrote the majority opinion, seems to have had it up to here with those who want to define obscenity as anything they don’t like: ”The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.”
Citing the fact that “this country has no tradition of specially restricting children’s access to depictions of violence,” Scalia delivers the coup de grace when he observes, “Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers till she falls dead on the floor, a sad example of envy and jealousy. Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.” And that’s before Scalia gives us a rundown of the events in “The Odyssey” and “Lord of the Flies.”
Kotaku and Nerdvana (and a slew of others) have been covering this story since the second the decision came down; you can read their very detailed write-ups at the links if you’d like to know more. As for me, I think I’m going to head to our shiny new lounge for a quick round of “Halo: Reach.”