Supreme Court Upholds Free Speech in the Violent Video Game Case

In a major victory for the first amendment, the Supreme Court ruled that a California law regulating the sale of violent video games is unconstitutional. It was a strong 7-2 vote with only Justice Clarence Thomas and and Stepen Breyer dissenting — an odd couple to be sure from both ends of the ideological spectrum. Justice Antonin Scalia wrote the majority opinion.

The ruling represents a win for the Ninth Circuit, which is the most reversed of the circuits.

Scalia found that California was wielding a “free-floating power to restrict the ideas to which children may be exposed.” Scalia rejects the very premise of the legislation:

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather, relying upon our decision in Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 (1994) , the State claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies. But reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. Id. , at 661–662. California’s burden is much higher, and because it bears the risk of uncertainty, see Playboy , supra, at 816–817, ambiguous proof will not suffice.

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, 6 and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

Against this weak backdrop, Scalia finds a clear free speech interest in sharp contrast to Thomas:

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. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

Thomas again is eager to bury the free speech values in the case with the help of Justice Breyer. In his dissent, Breyer simply finds under existing decisions the statute is not so vague as to deny people an understanding of what is prohibited.

For his part, Thomas would sweep away the rights as a threshold matter: “’The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.” Thomas took a strong patriarchal tact from the outset of the decision, noting

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13.

What followed as a rather curious exposition of Thomas of the role of fathers and family in American history. It seems more fitting for a panel discussion on child rearing than a constitution analysis. What is interesting is that much of this analysis could be viewed as supporting the authority of families over the legislature on such matters. Yet, Thomas concludes In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors.”

Here is the decision: 08-1448

Jonathan Turley

25 thoughts on “Supreme Court Upholds Free Speech in the Violent Video Game Case”

  1. I missed this Court ruling for corporations. Fortunately, I am old and only have a limited amount of money in mutual funds…as well as a limited number of years, so, I can afford to fold…


    ‘The Supreme Court’s get-out-of-jail-free card for Wall Street’

    “Let’s hope that the current Supreme Court is remembered by posterity as the absolute peak high point in judicial willingness to kowtow to corporate interests. Because if it gets any worse than now, it’s hard to see any way forward for such antiquated concepts as democracy or level playing fields or simple justice.

    The Supreme Court just made it much, much harder for shareholders in mutual funds to sue the operators of those funds for exactly the kind of misrepresentations and malfeasances that were at the heart of the mortgage lending securitization fiasco that blew up the financial system and crashed the economy.”

  2. Ah, there’s no sight as fine as a well fed troll patting it’s warty belly…

  3. Supreme Court sides with the rich and powerful
    Published: Tuesday, June 28, 2011, 5:58 AM
    By Star-Ledger Editorial Board

    In a ruling yesterday, the U.S. Supreme Court yesterday again came down on the side of money in politics.
    This decision makes a perfect bookend to the court’s decision last year, in Citizens United, that allowed corporations and unions to spend unlimited funds from their general treasuries on political campaigns.
    While that decision ensured that wealthy interests can press their advantage to new heights, yesterday’s decision effectively kills any chance that public financing of campaigns can present a viable alternative. Both decisions relied on a 5-4 majority, with the familiar ideological split.
    Arizona’s law, passed by referendum in 1998 in the wake of a corruption scandal, allows candidates for public office to obtain public funding for their campaigns and agree to spend no more. To ensure a level playing field, the law grants these clean candidates extra “matching funds” when they are outspent by their opponents, or by independent groups. The matching funds are capped at triple the original grant.
    It is not a perfect system. But the people of Arizona embraced it because the status quo was far worse. In the scandal known as “AzScam,” nearly 10 percent of state legislators were caught accepting campaign contributions or bribes in exchange for supporting pieces of legislation. They were disgusted by videotapes of politicians stuffing cash into gym bags and they wanted a cleaner system.
    Without matching funds, public financing can’t work because clean candidates would be defenseless against a barrage of private spending by their opponents. That is essentially why public financing of presidential campaigns has collapsed. There are no matching funds.
    During New Jersey’s brief experiment with clean elections in 2007, an outside group opposed to gay marriage launched an ad campaign against then-Assemblywoman Linda Greenstein (D-Middlesex), and she was able to defend herself by claiming an additional $100,000 in matching funds. Under yesterday’s decision, that practice would be barred. Greenstein would have had no answer.
    The logic of this one was Orewellian. The court found that matching funds infringe on the free-speech rights of the privately financed candidate.
    In dissent, Justice Elena Kagan cut through this sophistry and returned to the core purpose of the First Amendment, “to foster a healthy, vibrant political system full of robust discussion and debate.”
    Nothing in Arizona’s law, she wrote, limits either party’s free speech rights. To the contrary, it enhances the “opportunity for free political discussion.”
    Conservatives often complain about activist judges who overrule the other branches of government without sufficient cause. But again here, it is the conservative court that is choosing the most aggressive option as it dismantles, piece by piece, laws designed to guard against corruption and limit the power of money in politics.
    Make no mistake: This is an activist court. And increasingly, one that presents a tangible danger to our democracy.

  4. For all the same reasons that Democrats did the same to Republicans during Bush’s Admin. I believe it’s called political payback.

  5. Mr or Ms. Kderosa,
    If elections have consequences, why can’t Obama get judges confirmed?/ Why are Republican senators using holds and filibusters to stop judges even at the District Court level? Elections have consequences only when you agree with who won.

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