On Monday, the Supreme Court handed down its decision in Brown v. Entertainment Merchants Association. In a 7-2 decision, the Court struck down the California law that prohibited the sale or rental of “violent video games” to minors.

The law sought only to restrict minors’ access to graphically violent video games without parental consent. Justice Scalia, writing for the majority, viewed this as an unconstitutional attempt to expand the narrow categories of content which are not afforded full First Amendment protection: obscenity, incitement, and fighting words. The statue sought to treat graphic interactive violence as a type of obscenity, but Scalia would have none of it, writing, “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’” In short, Scalia wrote, “violence is not obscene.”

The majority rejected the argument that minors have more restricted free speech rights than adults, observing, “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.” This is really the crux of the issue before the Court.

Justice Thomas, in dissent, wrote, “The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” Justice Breyer agreed, writing that

California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.

But Scalia rejected Thomas’ argument, noting that the latter cited no authority for the proposition. In fact, Thomas cited a rather lengthy history to support his assertion.

The majority was wrong. Thomas and Breyer were correct. The law was aimed at who may provide minors access to a narrowly defined category of speech, interactive, graphically violent video games in which the player brutally victimizes what appears to be another human being. This is precisely how the law treats “soft core” pornography. Minors may not buy it for themselves, but parents may buy it for their minor children. The majority refused to permit states to apply this common sense approach to violent video games.

The majority never addresses why sexually explicit content was considered a proper subject for such restrictions. The Court in Ginsberg told us why. It found two interests that justified restricting minors’ access to sexually related material. First, a parent’s right of authority in his or her household entitles him or her to support from the state in the form of “laws designed to aid discharge of that responsibility.” Second, the Court found that the state had its own interest in children from abuses that might “prevent their ‘growth into free and independent well-developed”’ adults. Scalia fails to explain why this same rationale would not justify restricting minors’ access to interactive graphically violent video games.

In FCC v. Pacifica, the Supreme Court held that a radio station could be subject to administrative sanctions for broadcasting George Carlin’s “Filthy Words” monologue outside late-night hours. The Court rejected the claim that speech must be obscene in order to be subject to restrictions on its broadcast. It held that the words used by Carlin were offensive “for the same reasons that obscenity offends,” noting the FCC’s finding that “‘[o]bnoxious, gutter language describing [sexual and excretory bodily functions] has the effect of debasing and brutalizing human beings.”

From Ginsberg and Pacifica, it is clear that while minors have First Amendment rights which government may not infringe, those rights are not as extensive as the First Amendment rights of adults and the limitations upon those rights are not limited to sexually explicit material. The test for whether a given category of expression is subject to restrictions as to non-adult recipients is whether that speech it impairs youth’s moral development.

If merely listening to George Carlin utter his seven filthy words “has the effect of debasing and brutalizing human beings” so that minor’s access to his monologue may be restricted, why wouldn’t their playing a video game in which they rape women or decapitate victims with machetes or bash in their heads with crowbars or assassinate President Kennedy (all of which are activities included in video games)?

While I find the majority opinion in Brown disappointing and even more so the fact that its author was Scalia, in the end there is something for conservatives to take away from the case: a strong judicial precedent that new categories may not be added to the type of content not afforded full First Amendment protection. The issue in Brown was violent video games, but tomorrow states may seek to restrict speech supporting traditional marriage or opposing abortion. In other countries, such restrictions are already in place and speakers are being fined or worse for defending traditional Christian values. Scalia’s opinion in Brown may then be seen as prescient by conservatives and the solid 7-2 decision that left many of us disappointed may yet be seen as a blessing in disguise. Today, many of us would have preferred a different outcome. Tomorrow, we may be thankful we didn’t get what we wanted.

Gregory K. Laughlin is Associate Professor of Law and Law Library Director at the Cumberland School of Law at Samford University in Birmingham, AL. He is the author of Playing Games with the First Amendment: Are Video Games Speech and May Minors’ Access to Graphically Violent Video Games be Restricted, 40 U. Rich. L. Rev. 481 (2006).

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

Robert T. Miller, “In Defense of Disgusting Speech”

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