On June 27, the U.S. Supreme Court handed down its opinion in the controversial, high-profile case before it regarding “violent” video games. (Here, I’m putting “violent” in quotes because, of course, the games aren’t really violent; they just mimic violence.)
The Court held, 7-2, that a California law restricting the sale or rental of such video games to minors violates the First Amendment.
The result of the Court’s decision will be not just to quash California’s law, but also to head off at the pass any efforts in other states to pass similar laws — which would likely have been imminent, had the opinion come out the other way.
One of the most interesting aspects of the case is that the two dissenters were Clarence Thomas, one of the most conservative of the Court’s conservatives, and Justice Stephen Breyer, one of the more liberal of its liberals.
Justice Thomas’s dissent focuses on his claim that, based on the original understanding at the time of the founding generation, there was no First Amendment right to speak to children directly, rather than by going through their parents. Therefore, Justice Thomas concludes, the video-game law’s restrictions on children’s video rentals and purchases do not violate the First Amendment.
I’ll discuss Justice Breyer’s dissent at the end of this column.
A State Statute About Depictions of Violence, Modeled on Supreme Court Precedent About Depictions of Sex
Because the Supreme Court had previously approved a special “obscene as to minors” standard for sexually-explicit material, California wrote its video-game law to more or less track that standard.
In particular, California’s law targeted 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, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
Under the California law, video game sellers were required not to sell or rent such games to minors, and to mark all such games “18” to indicate that those under 18 could not rent or buy them. The penalty for a violation was civil, not criminal: A fine of up to $1000.
California’s choice to model the “violent” video-game law on the Court’s precedents upholding heightened obscene-as-to-minors standards for sexual materials might seem wise at first glance. Such an approach might seem to suggest to the Court that the video-game law doesn’t reach very far beyond the type of statute that the Court has already upheld in the past. But in the end, I think it was a major mistake on the California legislature’s part to frame the statute the way it did.
What California was really worried about, it seems, was that video game “violence” would beget real-life violence. But it seemingly failed to find – and, indeed, confessed to the Supreme Court that it couldn’t prove – a direct causal link between video games and harm to minors.
Thus, in its video-game law, California took a different tack: The language of the statute suggests that the problem with such games isn’t that they trigger violence (the real concern); it’s that they are – or they induce the player to be – morbid or deviant.
But when a party is disingenuous about its actual motives for passing a law, courts don’t usually take kindly to that. In reality, California didn’t primarily care that young people might become morbid or deviant; instead, it primarily worried that they might get used to shooting video game characters, and then start shooting real people instead.
In contrast, the case law that had approved the “obscene as to minors” standard was more open about its real concern – the concern that sexual materials would appeal to minors’ prurient interest. The central point of that earlier law wasn’t that minors would go out and commit sexual crimes if they were exposed to pornography; it was simply that they would be exposed, while still too young, to certain sexual materials, and that, in itself, would have a negative effect on them.
The core hope there was plainly that minors’ moral corruption could be preempted, not that future crimes would be prevented. So while one could argue with the motives behind the “obscene as to minors” standard, one couldn’t really argue with its candor. But in the video-game statute, candor was lacking.
In sum, California made a major mistake trying to shoehorn its law into the “obscene as to minors” framework.
The Majority Opinion
In Justice Scalia’s opinion for the Court in the video-game case, he quickly makes clear that video games are fully protected by the First Amendment. Moreover, he adds – drawing on the Court’s recent decision in United States v. Stevens – that the Court is not willing to carve out new categories of speech that fall outside the First Amendment, and that it is especially unwilling to do so via a balancing test that weighs speech’s value against its cost.
In Stevens, the Court had struck down a law that rendered depictions of animal cruelty (such as “crush videos” where animals are killed) illegal. The law at issue had used the same kind of carve-out discussed above, for depictions with “literary, artistic, political, or scientific value.”
In Stevens, Scalia and Alito had clashed on the question of whether more First Amendment exceptions should be made, or whether the Court should hold the line. And here, in the video-game case, they clash again on essentially the same point – although Alito does concur in the judgment here, whereas he dissented in Stevens.
The bottom line is that Alito seems to be significantly more open to recognizing new First Amendment exceptions than Scalia is, though both are conservatives. If that’s true, then we may well see these two Justices continue to split on this point over and over, as the years pass.
Interestingly, Scalia argues that, in the video-game case, the argument against a First Amendment exception is stronger than it was in Stevens. That’s because the perpetrators of the violence against actual animals that is depicted in a “crush video” are plainly criminals, while — as Scalia playfully points out — the virtual characters in a video game have committed no actual crime.
Justice Scalia also gives short shrift to California’s attempt to treat violence as if it were obscenity, and to apply a parallel test. He writes flatly that “violence is not part of the obscenity that the Constitution permits to be regulated.” Scalia’s unequivocal statement illustrates that, as I noted above, California should have known going in that using the obscene-as-to-minors framework in its statute was a major error.
Notably, Scalia is clear, in his majority opinion, that in his view, minors definitely do possess First Amendment rights, which cannot be lightly taken away. There is no “free-floating power to restrict the ideas to which children can be exposed,” he writes. Scalia also notes that books for minors have always depicted violence; indeed, high school reading lists are full of such depictions.
Scalia also rejects the claim that video games are different from books, films, and the like because they are “interactive”; so too, he says, are choose-your-own-adventure books and, indeed, all literature and film, for the reader identifies with and judges the characters as he or she reads or watches – condemning, admiring, or identifying with them, in turn.
Scalia also points to the video-game industry’s voluntary rating system and the industry’s guidance for retailers as suggesting that there was no real need for California to act in this area in the first place. With concerned parents easily able to evaluate their kids’ games, Scalia reasons, California lacked the compelling interest it needed in order to constitutionally regulate the games’ sale and rental.
In my view, Justice Scalia’s analysis is spot on. It’s possible that Scalia’s general refusal to recognize new First Amendment exceptions may not be the right approach in some future case, and one could argue that it wasn’t the right approach in the Stevens case. But in this case, Justice Scalia offers ironclad reasons that such an exception is simply not needed or justified.
Justice Breyer’s Dissent
Justice Breyer dissents on the ground that the legal challenge to the statute is a First Amendment facial challenge, and it is well-established that such a challenge can succeed only if “a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
Breyer’s view is that the facial challenge here should fail — because the video-game law, he believes, had a wide swathe of legitimate applications. Specifically, he sees the statute’s legitimate applications as consisting of “sales to minors under the age of 17 (the age cutoff used by the industry’s own ratings system), of highly realistic violent video games, which a reasonable game maker would know meet the Act’s criteria.”
Also important in Breyer’s analysis is that, unlike the Justices in the majority, he believes that video games are not pure speech; rather, he sees them as a combination of speech and action, akin to “target practice.”
Breyer also sees the restriction the California law imposed as not especially onerous: He writes 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.”
Unfortunately, though, I think Breyer gives too little weight to the point that for a minor whose parent is not willing to help, the ban is effectively total.
Breyer also differs from the majority in isolating the precedents that he believes should be most salient in the Court’s analysis. Indeed, he remarks that the Court majority focuses on cases involving “depictions of violence,” while he focuses upon cases involving “protection of children.”
Breyer’s dissent is well worth reading in full — both for the scientific studies he cites, which may show that California was too quick to concede that it could not prove video games’ harms; and for the way it exemplifies how two Justices (here, Scalia and Breyer) may find entirely different sets of precedents relevant in the same case, and may reach very different conclusions as a result.
