In striking down a California law that would have regulated the purchase of violent video games, the U.S. Supreme Court on Monday signaled that it is unwilling to create new categories of prohibited speech to regulate expression.
In a 7-2 decision in Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association), the Court affirmed a lower appeals court decision and ruled that California cannot prohibit the sale and rental of “violent video games” to children because such games receive strong protections under the First Amendment.
The Court likened video games to other forms of protected expression, such as books, plays and movies, saying the medium communicates ideas and social messages through familiar literary devices such as characters, plot and dialogue.
“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,” Justice Antonin Scalia said in the majority opinion.
In Monday's decision, Scalia said the court’s opinion in Stevens controlled the outcome of the case, rendering the California statute unconstitutional.
In Stevens, the court struck down a federal law that criminalized depictions of animal cruelty on First Amendment grounds, ruling that the government could not create new categories of unprotected speech outside of traditionally recognized categories such as obscenity, fighting words and defamation.
The California legislature attempted to make “violent video games” its own category of unprotected expression, incorporating the Supreme Court’s definition of what constitutes obscenity into the definition of violent video games.
Borrowing from the Court's three-part obscenity test, the California law defined violent video games as those that appeal to a deviant or morbid interest of minors, are patently offensive to prevailing community standards and lack serious literary, artistic, political or scientific values.
But lawmakers cannot add to the list of unprotected speech merely by incorporating the definitions of historically unprotected speech, such as obscenity, to new categories, according to the majority.
“Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking,” Scalia said.
The majority also rejected an argument that the statute was more akin to state laws that prevent distributing obscene material to minors.
The law “does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children,” Scalia said. “Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”
Creating such a new category of prohibited speech would be “unprecedented and mistaken,” Scalia said.
The Court found several faults with the California statute. First, the evidence used to suggest a link between violent video games and actual violence by minors is dubious, discrediting the state's need for the statute. Also, the statute does not protect children whose parents have decided to allow their children to play games that the act deems violent.
"The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) say it's OK," Scalia said.
While agreeing that the law should be struck down, Justice Samuel Alito, in a concurring opinion joined by Chief Justice John Roberts, said the Court did not have to create such broad protections. Instead, Alito and Roberts would have struck down the law because its definition of what constitutes a “violent video game” was too vague.
In separate dissenting opinions, Justices Clarence Thomas and Steven Breyer criticized the Court’s decision.
Thomas argued that the Court had inflated the First Amendment rights of children, as historically parents have controlled the information given to their children.
“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,” Thomas said.
Breyer argued that the law does not significantly burden expression, as it merely regulates who can purchase a video game. The law also extends the rights of parents to choose the content their children watch.
“In my view, the First Amendment does not disable government from helping parents make such a choice here — a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children,” Breyer said.
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case.