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