Forget about politically correct speech. Or a good bit of it anyway, so that we can benefit from honest conversations. And, yes, I did write about manners in my syllabus—but decorum is neither mutually exclusive nor conflicting with a broader principle of robust, honest dialogue. So, yes, I lean toward a stronger view of the First Amendment—not as an originalist, but rather as a scholar committed to the ideal that law must not be shackled to formalism. Law should be more elastic and responsive to an ever changing society. An evolving commitment to justice, you might say.
That said, the U.S. Supreme Court’s decision this week on video-game sales to minors falls short analytically. Yes, yes, despite my own First Amendment commitments, the opinion exposed characteristic inconsistencies within the broader scope of obscenity jurisprudence. So, states can regulate the selling of girlie magazines to kids, but not violent and sexually violent video games, where the kids are rewarded with points for killing, maiming, and sexually assaulting people in the “video world.”
Here’s the case: Brown v. Entertainment Merchants Association. The Court held that violent video games are a form of speech, protected by the First Amendment. This was not a unanimous opinion, but a 7-2 split, with two concurring and two dissenting. As a matter of trivia, it was one of the most unique splits among an ideologically divided court. Surprisingly for some, both the iconic liberal Justice Breyer, and the shameless conservative Thomas both dissented. Roberts and Alito were reluctant followers, suggesting that if the California law, on which the case was based, were less vague and more narrowly tailored a stronger case could be made for restricting violent video sales to minors.
The basic premise is understandable, and few would disagree that the sale of video games, even the most violent, should not be proscribed by state regulation or burdened by sanctimony. But the case was not about all video games, adult purchase of violent video games, or kids playing violent videos purchased by parents, siblings, or cousins. Rather, the California law in question specifically targeted minors, making it a crime, punishable by a $1000 fine to sell kids violent video games “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being.” The law stated that the violence had to be “patently offensive,” and without any “serious literary, artistic, political or scientific value.”
How much narrower must the law have been written to pass the Alito sniff test?
The law was modeled after Ginsberg v. New York, where the Supreme Court permitted the state to impose limits on the sale of “girlie magazines” to kids. The statutory language borrowed directly from the New York Law, which didn’t seek to restrict kids from buying obscene materials, but those that were a step below.
So what to make of this? Is it as some might describe, Scalia follows a strong Catholic ideology—and thus frowns on the solicitation of sexual images to minors (albeit on paper), but the virtual, simulation of violence—even sexual violence is OK? Was Thomas really off the mark when he suggested that the Framers weren’t thinking about kids when they drafted the First Amendment? The answers are yes and no—respectively.
Truth is, Scalia is ideological, but that’s no surprise, and so are his colleagues. I don’t mind that. Hopefully this case will inspire a broader and more thoughtful analysis than the old refrain: “don’t let your kids buy such crap!”
The case should raise underlying questions about First Amendment issues that intersect with technology and social mores in the realm of obscenity, such as “sexting,” cyber bullying, teenage cyber sex, and statutory rape law. Try to explain to a kid why he can sexually assault his girlfriend’s avatar in a video game and that’s OK, but he risks becoming a registered sex offender if he emails a photo of a naked girl to a friend or videotapes himself having sex with a teenager.
After this case, the bottom line is that a state can ban kids from purchasing girlie magazines, but it cannot prohibit boys and girls from purchasing video games where they rape and murder people. Interestingly, the majority was not persuaded by the scientific evidence offered that children who engage in violent video-game interaction are more likely to be aggressive or violent in interactions with others, nor were they moved by Alito’s personal research on the matter, which some commentators on this blog find weird.
What the Court has built here is not nuance, but broader inconsistency in industries that previously marketed and sold to young adults. Consider for example, R.J. Reynolds can’t use images on their packaging that would remotely amuse a kid. We’re not talking about handing out cigarettes to kids. The same is true regarding alcohol. Why? Because ample scientific evidence demonstrates that kids respond to advertising and they respond to the images and performances they see. It can’t be because courts or the FCC seriously believe looking at a camel smoking a cigarette causes lung cancer in children.
Here’s what Scalia was thinking: violence is not obscene.
His comparison: “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)…”
The adult film industry feels the same way about pornography…their movies have dialogue, plots, and music, but it can’t be marketed and sold to kids. And that is the critical point of the case, and why it provides fertile ground for rethinking First Amendment jurisprudence.
