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
No, really. Your boys and girls will bend the constitution to allow any policy they favor, giving power to the other branches to effect their favored policies. The very thing you are complaining of.
Johnson’s Great Society.
No they are both just power hungry. And you keep giving them more power.
AS interpreted to permit only your favored policies, apparently. Diversity is good unless it is diversity of opinion.
“Your judges broke the Constitution on that issue and that is why we have this problem today.”
My judges? Hardly. The five in question were appointed by Reagan and the two Bushs. That would make them your judges. I was against appointing all of them, but especially Thomas and Roberts.
“We’re talking political speech, the kind the 1st amendment was intended to protect.”
Yes, it was. For singular human citizens, not legal fictions like corporations.
“Elections have consequences.”
Yes, they do. And all the bad consequences we are currently seeing are because of neoconservative Republican appointments to the Court and in the Senate (not that the House gets a pass because the GOP did their damage there too, but they’ve primarily acted as obstructionists in the Senate). So next time you want to whine about “the Progressive era”? There hasn’t been a progressive era in this country since FDR.
All this damage? The GOP is the group that wrecked the car. The DNC is just too spineless to put out the fire and/or bought off too and throwing gasoline (in the cases of Obama and Pelosi).
You mistake me for a partisan. I hate both parties. One for being outright criminals and the other for being spineless whores – although in that respect they are largely interchangeable due to campaign finance. My loyalty is to the Constitution as informed by the Declaration of Independence. Full stop. I live for the day both parties are outlawed for the crimes and disservices they’ve done against the citizens of this country and corporations are put back on the short leash.
Elections have consequences.
That’s not who will turn the tables. Your political opponents will be the ones doing the same to the liberal justices, as you wish to have donr to the conversative justices.
The founders understood this problem — the problem of factions. See Federalist Nos. 9 and 10. The solution was not to give the Feds much power, only enumerated ones. Your judges broke the Constitution on that issue and that is why we have this problem today.
The graft your judges permitted, via, primarily, at over broad reading of the Commerce Clause.
I’ll say it again, so what’s your theory as to why ‘the freedom of speech’ that was the right of Englishmen at the time, did not include the freedom to speak in association with other individuals, including association in the corporate form? We’re talking political speech, the kind the 1st amendment was intended to protect.
I can’t help it, if you haven’t thought your rhetoric through properly.
“Five of the justices wouldn’t know the Constitution if it bit them on the ass and a sixth is iffy.”
And of those five, take a guess who appointed them?
The real answer is really funny.
“Funny how these ethical gamesmanship will come back to haunt you when the tables get turned. ”
You assume I think the current SCOTUS, but especially Thomas, is competent for the job. Five of the justices wouldn’t know the Constitution if it bit them on the ass and a sixth is iffy.
“Good luck bypassing the Constitution to enact your agenda via the judiciary after the judiciary gets discredited.”
You assume I’m for judge made law. I’m not. You also assume I don’t think the judiciary is broken. That would heinously incorrect. What I am for is Congress doing the job they were elected to do as defined by the Constitution: represent ALL their citizen constituents, not just the corporations and wealthy “campaign contributors”. If Congress wasn’t bought off by graft, they could and would reign in SCOTUS in a heartbeat. Citizens United wouldn’t have stood for a month if Congress didn’t have their head up Wall Street and K Street’s collective venal ass. Obviously you slept through the civics class where they discussed checks and balances.
“Funny not realizing the implications of carry out your rhetoric to its natural conclusion.”
Really.
What’s funny is that you think my natural conclusions are based on your hilariously false assumptions.
Next time you want to try to insert a false premise into my arguments?
I’ve got a suggestion where you can stick it, propaganda troll.
So what’s your theory as to why ‘the freedom of speech’ that was the right of Englishmen at the time, did not include the freedom to speak in association with other individuals, including association in the corporate form?
Well Clarence “the Best Man in America for the Job” Thomas tends toward patriarchalism? He feels that we can forbid the sale ‘violent’ video games to minors because at the time of the adoption of the First Amendment I or any other adult would have needed the permission of a parent to talk to that person’s child? Yet Thomas believes that in 1789-91 that the drafters such as James Madison believed that the First Amendment protected corporations? Even though corporations at the time were an act of grace conferred by the Crown or by the Legislature, and not handed out like beers at a Dodger game upon paymnet of the fee? Will he also decide that the president of the US is not commander and chief of the air force because the Constiution declares him commander in chief of the land and naval forces and the founders never considered having an air force?
This is just too rich for words!
The SCOTUS loves the free speech of corporations.
(Reuters) – “The Supreme Court struck down a law that prohibits the use of prescription drug records for marketing, ruling for free-speech rights over a state government’s medical privacy concerns.
The high court handed a victory to data-mining companies IMS Health, Verispan and Source Healthcare Analytics, a unit of Dutch publisher Wolters Kluwer, which had challenged the law. The companies collect and sell such information.
By a 6-3 vote, the justices on Thursday upheld a ruling by a U.S. appeals court that Vermont’s law infringed on commercial free-speech rights in violation of the First Amendment of the U.S. Constitution.
The law, adopted in 2007, prohibited the sale, transmission or use of prescriber-identifiable information for marketing a prescription drug unless the prescribing doctor had consented.
Vermont, Maine and New Hampshire are the only states to have adopted such laws, although similar measures have been proposed in about 25 states in the last three years.
Pharmaceutical manufacturers use data about a doctor’s prescribing habits to better inform their drug salespeople when they visit physician offices to market certain products.
According to evidence presented in the case, pharmaceutical manufacturers spend nearly $8 billion annually on marketing efforts directed at doctors.
“Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment,” Justice Anthony Kennedy wrote in the court’s majority opinion.” ….
http://www.reuters.com/article/2011/06/23/us-usa-healthcare-privacy-idUSTRE75M3T720110623
“But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her”
My parents, who were sexually liberated for their time let me read Playboy when I was 11. My brother and I had a nude picture of Marilyn Monroe, the famous calendar one, on the wall of our bedroom. From age 8, after I ran out of books from the family collection (lots of books), they got me a library card and the librarian was told I could take out any adult book in the library.
Neither my brother, nor I was ever limited as to our reading material. So when they finally allowed James Joyce, Henry Miller, D.H. Lawrence and others US publication (they had been banned until the late 50’s) I read them all. My brother has been married for over 50 years, myself 30. We’ve always respected women and have never cheated or mistreated our wives, quite the opposite. My daughters were allowed the same privileges and have thrived. Repressing children to “protect” their innocence, or monitoring their game playing not only works negatively, but is just the kind of intrusion good parents shouldn’t make.
Make sure they do their homework, don’t allow them into dangerous situations, communicate to them your values and your expectations for them, play with them, recreate with them and damn it then allow them to discover the world for themselves by letting them expand the realms of their curiosity. Every politician that talks of censoring for the safety of children’s innocence, is either a fool or a fraud.
Funny how these ethical gamesmanship will come back to haunt you when the tables get turned. Good luck bypassing the Constitution to enact your agenda via the judiciary after the judiciary gets discredited. Funny not realizing the implications of carry out your rhetoric to its natural conclusion.
Funny how the dissenter defending the limiting free speech gets all the hate when the side that should have lost as a Constitutional matter did in fact lose. Funny how that dissenter is currently involved in a very public scandal involving his total disregard of ethical standards imposed on the rest of the judiciary. Funny how that dissenter is taking money from PAC’s via his wife and acting to further politicize the Court. Funny how the dissenter is the least qualified member of the Supreme Court. Funny that the House has introduced a bill that would hold SCOTUS to the same ethical restrictions as Federal Circuit Court judges. Funny that the House’s actions were prompted by the improper actions of the dissent.
Good humor is where you find it.
Funny how Thomas is getting all the hate, as opposed to the Democrat who sponsored the bill and the Democrat controlled CA assembly that passed the bill.
Ars Technica is a news/blog site that covers science and technology – being part of tech and gaming culture, they are generally pretty staunchly opposed to any sort of video game censorship. (Given that most attempts at it are ham-fisted and obvious, sloppy demagoguery, it’s easy to oppose them.) Their coverage of this ruling is very straight-forward and quotes from the decisions more extensively:
http://arstechnica.com/tech-policy/news/2011/06/puritans-and-lady-godiva-why-two-justices-voted-to-uphold-californias-video-game-law.ars
(In contrast to most TV news and Newsweek-type magazines, Ars Techica is also an excellent source of level-headed and technically accurate coverage of groups like Anonymous and LulzSec for anyone who is interested…)
They quote from Breyer’s opinion: “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? 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?” Which seems like a pretty reasonable objection.
But it seems that Justice Thomas finds new ways to top himself (or sink to new lows, depending on your perspective). There may be some precedent for his discussion of Constitutional rights in light of how we today understand the attitudes of the Puritans (in their pre-Constitution era), but to do so sounds absolutely insane to me.
He wrote, “Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.”
That is part of the basis for a Supreme Court opinion. People who were crazy even by 18th century standards thought something extra nutty, therefore we should modify our 21st century laws based on that. Seriously?
I understand that there is a movement within the US to re-imagine the Constitution as a Christian expression, but it seems that the actual Enlightenment era thinking behind almost every part of the document was radically in opposition to the fundamentalist attitudes and beliefs of the Puritans. How could anyone in a position of responsibility claim, “Well, if the Puritans though something was good or bad, then our laws today should reflect that” ?!?
Seems mildly relevant
[youtube=http://www.youtube.com/watch?v=FarkwYDir2Y&w=640&h=390]
The Puritans would have dunked Clarence Thomas’ ass in the nearest pond just on general principles (and pubic hairs on Coke cans). And waited ’til January to do it.
Sw mom-
I understand perfectly. Corporations are persons and money is speech. Simple.
http://tpmmuckraker.talkingpointsmemo.com/2011/06/kagan_supreme_court_ruling_against_arizona_public.php?ref=fpa Another 5-4 ruling with the usual suspects ruling against public financing
Great. Video Games are too easily the targets of politicians who care more about scoring points with voters, rather than protecting their constituency..
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.”
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Say what? This white boy ain’t understanding this….How exactly have you ruled on this in criminal cases….oh yeah a 17 year old is not a minor and designation hearings for 8 year olds are just fine…