Teabagging=Protected Speech

The Supreme Court has ruled [pdf] against the state of California in Brown v. Entertainment Merchants Association, striking down AB 1179 as an unconstitutionally vague restriction on free speech.

The law at hand provides for a fine of $1000 to be levied against retailers who sell or rent violent video games to minors. Using a modified version of the Miller test, the state would determine which games contained the necessary quotient of violence to qualify.  The majority opinion of the Court states that California’s law does not address a “compelling” interest, and thus does not meet strict scrutiny.

Rejecting the notion that depictions of violence in video games are more vivid or dangerous than those in literature, Justice Scalia writes:

Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny-a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature [footnote, p. 9]

He goes on to point out that many great works of literature, such as Grimm’s Fairy Tales, the Odyssey, and Dante’s Inferno feature harrowing acts of violence.

The Court also rejects the notion that video games are not protected because they are a different medium.

(…) whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503. [pp. 2-3]

He dismisses Dr. Craig Anderson’s arguments, which have been “rejected by every court to consider them [pp. 11-13].” I found this anecdote to be somewhat entertaining:

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). [p. 13, footnote 7]

Justice Alito concurs that the California law does not meet the standards set forth by Miller because depictions of violence are not considered “obscene” by society in general* and because plaintiffs do not deliniate a specific class of acts defined as objectionable. Though he claims to be repelled by the violence he found under his own research, he finds that California’s version of the Miller test to be deficient.

For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions. [Alito concurrence, p. 6]

Though the current law is unconstitutional, Alito argues that more clearly defined laws may allow for restrictions:

For all these reasons, I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us. [Alito concurrence, p. 17]

Justice Thomas wrote an interesting dissent in which he addressed the broader question of the applicability of the 1st Amendment to minors. As usual for Thomas, it’s an interesting read from an originalist standpoint, but it feels more like a footnote to the matter at hand than an actual contribution.

Breyer complains about the social consequences in his dissent, arguing that video games are a different form of speech because they have an element of physical action in addition to expression.  As usual, he asserts that the government is best suited to determine what’s best for society.

The ruling was by a 7-2 margin, and it’s interesting that the Justices appear to have agreed across idealogical divides.

* Personally, I wonder what it says about us as a culture when the portrayal of a grisly gunshot wound is accepted, even glamorized, on prime-time television, but the appearance of a healthy nipple is considered prurient and shameful.