On Monday, the Supreme Court decided Brown v. Entertainment Merchants Association, striking down on First Amendment grounds a California statute prohibiting the sale of certain violent video games to minors without parental consent. The configuration of Justices was unusual: the majority opinion was written by Justice Scalia and was joined by Justice Kennedy and three of the Court’s liberals (Justices Ginsburg, Sotomayor, and Kagan), while Justice Alito and Chief Justice Roberts concurred in the judgment on much narrower grounds, and Justices Thomas and Breyer dissented, albeit for quite different reasons.
As Justice Alito points out, the violence in these games is astounding. “Victims by the dozen are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws,” and are “dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.” The victims “cry out in agony and beg for mercy,” and “blood gushes, splatters, and pools.” In some games, players can reenact the killings at Columbine and Virginia Tech or play at being Lee Harvey Oswald assassinating President Kennedy. In one game sampled by Justice Breyer, the player “shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head.”
Many conservatives will deplore the Court’s decision as promoting these disgustingly violent games, coarsening the culture, and undermining the authority of parents. I sympathize with this view; the decision does do all these things. It is nevertheless legally correct—and therein lies an important philosophical point.
First, the legalities. There is no serious dispute that speech depicting violence is not among those few categories of speech wholly beyond First Amendment protection—things like obscenity (meaning sexual obscenity, not “obscene” violence), incitement, and fighting words. And there is no serious dispute that this means that the California law is constitutional only if it survives strict scrutiny—i.e., only if it serves a compelling government interest by narrowly tailored means.
Simplifying somewhat, this means that the law has to advance a very important purpose confided by our system to the government and, in addition, promote that purpose by limiting free speech only to the extent truly necessary. Both parts of this test are important, because there are many important purposes that our system does not confide to the government (e.g., reaching eternal salvation) and many it does so confide (e.g., preserving democracy) that could be well served but not in a narrowly-tailored way by suppressing free speech (e.g., by banning certain political tracts).
In trying to show that the statute served a compelling government purpose, California argued, on the basis of psychological studies, that playing violent video games makes children more aggressive. Note that, even if correct, the studies did not show that playing violent video games causes children to behave more aggressively (e.g., become violent), only to register more aggression on tests designed by psychologists to assess their dispositions. That video games do not, generally speaking, cause actual violence is obvious: millions of kids play violent video games, but only a tiny percentage of them commit violent crimes, and even among those who do, most do so for reasons unrelated to video games.
But even the evidence that violent video games make children “aggressive” was equivocal. Justice Breyer, who would have upheld the law, assembled two vast arrays of peer-reviewed studies, one tending to show that violent video games make children aggressive and the other tending to show the opposite. He would have resolved the issue by deferring to the judgment of the California legislature. Justice Scalia rightly responded, however, that that is not what strict scrutiny means: under strict scrutiny, the state has to prove not that it may be right, or that there is some evidence that it is right, or that it is reasonable to think it’s right—but that it really is right. That’s what the judicial check on the legislature means here.
So, as a matter of law, I think the majority’s conclusion is well-nigh inescapable. Justice Breyer, the only Justice who seriously argues that the statute passes strict scrutiny, reaches that conclusion only by tacitly changing what strict scrutiny means. But, given how disgusting and vile these video games are, doesn’t that imply that, if the First Amendment stops government from suppressing them, there must be something wrong with our understanding of the First Amendment?
Here I come to the philosophical point. What’s wrong with these video games is not that they make children violent or criminal; there is no evidence for that, and the defenders of the statute talked about the games making children “aggressive” only because they knew they would have to justify the law in terms of a compelling government interest, such as suppressing violence and so, perhaps, the “aggressiveness” that might lead to violence.
What’s wrong with these games, rather, is that they are disgusting and vile and they tend to make people who play them disgusting and vile as well. So the real question is this: should the government have the power to suppress speech that is disgusting and vile just because it’s disgusting and vile and corrupts the morals of the young?
If you think carefully before you answer, you’ll say no, and the reason for this is that speech that a legislative majority sincerely finds disgusting and vile may turn out to be good and valuable. Reflect that the educated, cosmopolitan, highly literate Romans of the first century regarded the preaching of the Christians as disgusting and vile. The great Pliny, for example, thought that Christianity was a depraved and excessive superstition (Letter X.97, see here for Latin, here for English). If Rome had been a democracy, it would have been easy to assemble a legislative majority to suppress Christian teaching.
Now, will Mortal Kombat or Grand Theft Auto turn out as valuable as Christianity, or even valuable at all? I’m sure not. But that’s just the point: being sure is not good enough, because even when you’re sure, sometimes you turn out to be wrong. There is no principled way to make exceptions in your own favor here.
The safest course in the long run is to require much more from the government before it may limit speech than a majority’s subjective certainty that the speech is wrong, bad, disgusting, or vile. That is the principle vindicated in Brown v. Entertainment Merchants Association, and I would rather live in a coarser nation that upholds that principle, secure that my own freedom to say what others may deem vile and disgusting is protected, than in a more genteel nation that may someday take that freedom from me.
Robert T. Miller is a professor of law at the Villanova University School of Law.
RESOURCES
Brown, Governor of California, et al. v. Entertainment Merchants Association et al. [PDF]
Charles J. Chaput, O.F.M. Cap., Violent Video Games and the Rights of Parents
Gregory K. Laughlin, Wrong Today, Perhaps Right Tomorrow
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Comments:
This decision is a wise one and when the street preacher is sued by some nutbar parent for exposing their children to the Bible, this case will be one of the precedents used to throw it out and maybe even get the parent sued in response.
"The safest course in the long run is to require much more from the government before it may limit speech than a majority’s subjective certainty that the speech is wrong, bad, disgusting, or vile. That is the principle vindicated in Brown v. Entertainment Merchants Association, and I would rather live in a coarser nation that upholds that principle, secure that my own freedom to say what others may deem vile and disgusting is protected, than in a more genteel nation that may someday take that freedom from me."
This principle would seem to allow obscene speech as well. Would Mr. Miller have judged obscenity laws as unconstitutional before that precedent was made for not fulfilling the requirement for "much more from the government" in terms of evidence? Or were there psychological and sociological studies Mr. Miller can point to historically that clearly showed the "compelling interest" of the State in banning obscenity?
I would also have hoped that Mr. Miller would address Thomas's minority opinion that originally free speech to children was limited by parental authority.
The statement you quote from my article is not relativist. A relativist claim would be something like, "I think Mortal Kombat is bad, but other people think it's good; therefore, it's not really either bad or good, but is different things for different people."
The statement you quote evinces not relativism but fallibilism--i.e., the idea that, even though I'm very confident I'm right, I recognize that I might be wrong. This idea presupposes absolute and objective truth; it just recognizes that *our ability to know we've reached that truth* is highly imperfect.
(1) There are some situations in which the showing of the *results* of hideous violence can serve a moral purpose: seeing photographs of mangled aborted fetuses might help some people realize the wrongness of abortion. Showing the mangled starved bodies of concentration camp victims can be a salutary warning against the dangers of antisemitism or totalitarianism.
(2) I think it would be right to restrict access to sexually obscene material even if there were no evidence that it increased people's tendency to commit sexual crimes. It would be enough, as far as I am concerned, that it made people "vile and disgusting". The kind of vileness involved probably corrodes the values upon which a healthy society depends. That may be hard to demonstrate "scientifically", because the causality may be indirect and hard to trace. But I think we may be morally certain of things we cannot prove scientifically. Maybe "being sure" without proof is not enough for the technical purposes of "strict scrutiny", but generally speaking it can be enough to warrant state action.
By the same token, and for analogous reasons it seems to me *in itself* quite legitimate for governments to restrict access to obscenely violent material.
The question is whether it would be *prudent* for the Supreme Court to place graphically violent material in the same category as pornography.
It seems to me harder to draw clear lines for violent material than for sexually explicit material. There is only a very narrow and probably easily specified range of situations where sexually explicit material is not pornographic. There is, however, a much wider range of cases where depiction of violence is legitimate.
I said nothing about Justice Thomas's dissent because, although I have great respect for Justice Thomas, his argument here is hard to take seriously from a legal point of view. I assume that is why none of his follow conservatives agreed with him.
One reason why Justice Thomas's argument fails is that, although Justice Thomas shows at length that parents have long been thought to have great authority over what their children read or hear, he produces *not a single instance* of a law that restricts the free speech rights of *third parties* as a buttress to such parental rights. There's a huge difference between the parent's right, good against the child, to prohibit the child from listening to certain speech (the parent may prohibit the child from listening and enforce that prohibition against the child) and the government's right, good against citizens' generally, to prohibit them from speaking when other people's children might be listening (the government may punish people for speaking to children without the parent's consent).
For example, if we took Justice Thomas's views seriously, California could enact a law that provides that no one could publish a Christian tract anywhere a child might see it unless that person first got the consent of the child's parent. Hence, a Christian website, or maybe even First Things, could be ordered by the government to modify its website so that children could not access it without parental permission--maybe by requiring a valid credit card number to be input before displaying any content. There is no support in our tradition for such a power in the government.
To my friend Steve Barr, there is an important legal differene between explicit depictions of sex and explicit depictions of violence because, historically, "obscenity" (meaning sexual obscenity) has always been acknowledged as being outside the protection of the First Amendment. This means the government may prohibit or limit obscenity *without* showing that in doing so it is serving a compelling government interest by narrowly-tailored means. If the government had to show this before suppressing obscenity, could it do so? I rather doubt it. But the point is that, because sexually explicit material, unlike explicitly violent material, is outside the protection of the First Amendment, the question of strict scrutiny does not arise for obscene material.
Perhaps you will say that maybe explicit depictions of violence should be treated like explicit depictions of sex for First Amendment purposes. I might agree with you, but such a decision--the decision about which categories of speech are beyond First Amendment protection--may not be made by courts, which interpret and apply the First Amendment we have, but only by the people, who enact the Constitution provisions in the first place. In order words, if you want to recognize a new category of speech beyond the protection of the First Amendment, you need to amend the Constitution, not convince a majority of the California legislature or even a majority of the Supreme Court. This is very important because to amend the Constitution, you need a very large supermajority of the people to agree, and this affords much greater assurance that depriving a category of speech of First Amendment protection is truly a good idea.
thank you for your thoughts. given some of your previous articles, what is the role of virtue ethics, if any, on this question?
thanks.
If you play the reductio game, it cuts both ways. For every appeal to subjectivity and uncertainty to undercut your opposition's premises, he can play the same card, and ruthlessly so.
If "F**k the draft" is just one man's obscenity while it is also another man's poetry, then one man's First Amendment is just another man's road to tyranny. To one man, the minimum age for President is 35; for another, it merely refers to 2/3 the average citizen's life-span, which means that it should be 50 given our modern age and its advancement in life-extending technologies.
Perhaps, such an amendment could follow the European Convention on Human Rights
""The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
I cannot imagine anyone finding these restrictions unduly burdensome on the responsible exercise of the right of free speech.
Thanks for your question. The role of virtue ethics here can be considered in two ways: (a) its role in deciding the properly legal question of whether the relevant California statute was constitutional under the First Amendment that we actually have in the actual Constitution, and (b) its role in answering the properly moral or political-philosophical question of whether a government should have power to prohibit violent video games.
As to the first, the role of virtue ethics is extremely limited. Questions of legal interpretation, in my view, tend to raise no more moral issues than questions of interpreting Kant's Critique or Spinoza’s Ethics. The question concerns the original understanding of a given text and so is simply unrelated to the fundamental moral premises of the person asking the question. See the blog of mine (linked below) describing a speech by Justice Scalia explaining why he is not a “Catholic judge.”
When we turn to the moral or political-philosophical question of which kinds of speech the government should have authority to prohibit, even if we assume that all the moral premises should be virtue-theoretic ones, there is still no simple answer to the question. The reason is that there is a big gap between what’s moral and what’s legal. For example, virtue-theory is compatible with both monarchy and democracy. If virtue theory doesn’t settle such huge issues as the very form of government, it obviously does not entail so fine-grained an understanding of freedom of speech as to settle the issue of whether government may prohibit violent video games.
http://www.firstthings.com/onthesquare/2007/10/antonin-scalia-not-a-catholic-
I think you’re overlooking the complexity here. I am not adopting some thorough-going fallibilism, perhaps on epistemological grounds, such that I don’t want the government to do anything because its arguments for acting might prove mistaken. My fallibilism here is restricted to one particular kind of question when asked in one particular context.
That is, I am being fallibilist on (a) questions concerning which speech is valueless, when (b) judgments on such questions are being offered as justifications by legislatures to suppress such speech. On different questions, I am not necessarily being fallibilist.
For example, if the question is whether certain speech presents a clear and present danger of violence, I am not being fallibilist: if the government has good evidence that certain speech incites violence, I am happy to allow the government to prohibit it. If the question is whether certain speech is valueless, but the question arises in an argument between me and my teenage son regarding which video games he may play, I am happy to enforce on him my view that such speech is valueless and to prohibit him from playing the relevant games. It is only when a legislature is making that judgment for the purposes of prohibiting the speech by law that I think we should be fallibilist.
The reasons for that are many. One is the poor track record of legislatures in this regard. That was the point of the example from Pliny, but I could have given modern examples as well, such as attempts in the United States only a few decades ago to ban Joyce’s Ullyses. Another reason is the seriousness of the consequences if the legislature turns out to be in error: if unpopular but valuable speech is banned, it becomes especially difficult for people in favor of such speech to get it un-banned.
One final example of the complexity: suppose the question of whether violent video games are valueless speech and so candidates for suppression arises not in a legislature but in a constitutional convention called for the purpose of revising the First Amendment. There, I might be inclined to vote to allow the government to ban especially violent video games. How does that differ from the recent Supreme Court case? It differs because there are many more procedural safeguards involved in amending the Constitution than in passing ordinary legislation and so the likelihood of error goes down substantially.
I am thus being fallibilist on one particular kind of question asked in one particular context, and I am doing so for empirical, historical, moral, and prudential reasons that do not apply to most other questions asked in most other contexts.
So you cannot imagine that anyone would find the restrictions that European nations place on free search burdensome? Are you aware of the differences between U.S. and E.U. speech restrictions?
In some E.U. nations, a person may be prosecuted, fined and even sent to jail for saying unkind things about racial groups, religious groups, or other minorities. For example, in France actress Bridgitte Bardot has been convicted several times for saying things about Muslims and Islam that would be obviously protected here in the United States. In Sweden, Pastor Ake Green was convicted for what he said about gays from the pulpit of his own church, though eventually the conviction was overturned. In Canada, which has laws similar to those of E.U. nations in this regard, Mark Steyn has been prosecuted for what he said in his book “America Alone” and Pastor Stephen Boisson for what he said about gays.
Let me, therefore, expand your imagination: I find all these restrictions on free speech allowable under E.U.-style laws to be highly burdensome.
One could go on and on, detailing how an ideology such as Islam could use the notion of "disgusting and vile" to diminishing and banish all concepts, speech, customs and rituals.
Does the Sacrifice of the Mass corrupt the morals of the young with its "disgusting and vile" presentation of the incarnated God? To Islam it does . . . therefore . . .
When the present or future character of a society is not clearly judeo-christian the notion of "disgusting and vile" becomes a dangerous concept, one easily morphed into a weapon of control.
If you're thinking I'm harping too much on poor Islam, then substitute its totalitarianism with Communism, Nazism, or even Pharaohic Egypt.
Where I once worshiped (Eastern Orthodoxy) any notion of giving the papacy a decent hearing was considered "disgusting and vile".
Yes, the family possesses a sovereignty, which is integral to its founding and foundation in God's law (more directly, by and through His act of creation). Yet, even in that the sovereignty of parents is confined (hedged about) by the (Natural Law) definition of family (marriage). It is not an open-ended sovereignty. Parents do not OWN their children; parents exercise a trust and duty. And, besides, how is the notion of "minor" determined - one that both satisfies both the prerogatives of Natural Law and those of legislated authority? How does the state yield to the family regarding the legal and natural definition of a "minor"? Where dd the no9tion of "a minor" come from anyway?
You say: "So I can now walk up to a child and say anything I want? No restrictions? Aren't you in the least bit concerned about causing these little ones to fall into sin? I guess not."
The Supreme Court decision made no change in what you may "walk up to a child and say."
What about stories of Christians being fed to the lions in the arena or being roasted over hot coals? What about the story of Hannah and her seven sons being tortured? For kids I cannot overstate the need for parents to do a lot of explaining, there are no short cuts. You've got to be there, period.
The freedom of speech cannot be absolute, one's right ends where another's right begins. That is the problem with liberal retrofitting.
@ Stephen G.
"Parents do not OWN their children; parents exercise a trust and duty." That isn't good enough Stephen, parents are RESPONSIBLE for their children. A tree is known by its fruits.
thanks for answering my question. in reply, i suspect that the act of interpreting existing texts *cannot not* involve "personal philosophy."
consider the act of reading "war and peace" as a 14 year-old male and then as a 65 year-old male. mortimer adler once said that teenagers almost by definition will most likely be unable to understand the depth and character of pierre's love for natasha, whereas a wiser, older man with life experience is more likely to understand it.
if adler is correct, one's *being* affects one's *reading* of existing texts. unless scalia thinks his catholic convictions have zero effect on his "being," it would be difficult to conclude he is able to judge merely as a disembodied, abstract human person. the assumption is, of course, that constitutional texts are not as clear as, say, mathematics.
i recall sotomayor making a similar argument regarding judging as a hispanic woman.... methinks being a judge -- and interpreting texts -- is ontologically different from being a third baseman. whereas a "catholic" third baseman makes no sense, a "catholic" judge may make sense given adler's position above. even so, i can't quite believe i'm taking on both you and scalia on this question. i'm not even a lawyer.
as always, i would love to hear your thoughts and appreciate your insights.
Adler says that different people get different things from the text, but he thinks that some interpretations are better than others, which implies that there is an objective meaning to be found in the text. Some people grasp that meaning better than others, depending on their experience, knowledge, sensitivity, etc., but the objective meaning is already there to be grasped. Adler is not saying that the very meaning of the text changes with the reader.
You would not say, I assume, that there is "Catholic" reading of Kant's Critique or Livy's History or Hitler's Mein Kampf. Why then should there be a Catholic reading of the Constitution?
In each case, it's simply a question of figuring out what certain people have said and then extrapolating, based on what they actually said, to what they would have been likely to say on other issues that they did not expressly address. It's not an exact science, to be sure, but it's nothing mysterious either. Think of someone you knew well who is now dead. Can you predict what that person would have said on certain issues? I assume you can. Does it matter that you and that person disagree on the issues in question? No, it doesn't. You don't warp the person's views to agree with you; you present the other person's views faithfully, even when you disagree with them.
The process you use in predicting what such a person would say is fundamentally the same process used in the interpretation of legal texts.
Note too that people who are *not* textualists and originalists like Justice Scalia can, very easily and very reliably, adopt textualist and originalist premises for the purposes of predicting what textualists and originalists will say on a particular question. They can do this without knowing a thing about Catholicism. This shows that it is the textualist and originalist premises that drive Justice Scalia's conclusions, not the Catholic ones.
Or again, there are non-Catholic originalists and textualists in the world, even some who are non-Christians or even atheists. These people will generally come to the same conclusions about the Constitution as originalists and textualists who are Catholic Christians. This too shows that it is the textualist and originalist premises that do the work, not the Catholic ones.
There is really nothing in the least mysterious about this. It's just that some people, for reasons that have always escaped me, have a felt need to make into religious questions issues that are essentially not religious.
Children should have boundaries and discipline, but what about violence on the news? At 18 people can be sent to war and kill another person, KILL another person. Think about that. Fake violence vs the real thing, there is a huge difference.
"Now, will Mortal Kombat or Grand Theft Auto turn out as valuable as Christianity, or even valuable at all? I’m sure not. But that’s just the point: being sure is not good enough, because even when you’re sure, sometimes you turn out to be wrong. There is no principled way to make exceptions in your own favor here."
...could be persuasive. Grand Theft Auto is different from truth claims about religion in several objective, and important, ways. First, it is a highly profitable commodity, whereas religious truth is shared freely. Second, it does not attempt to state anything ultimate or meaningful truths; its purpose is leisure entertainment. Finally, as Alito and Roberts note, it asks the player (as its name makes clear) to simulate actions which are crimes when actually done. The "value" of the game to the player really couldn't be clearer, and it has almost no similarity to the value of religious truth claims--whether Christian or not--to their adherents.