Video Games and Free Speech: An Electrifying Decision

JURIST Guest Columnist Roy Gutterman of Syracuse University says that the Supreme Court's recent ruling on violent video games, in conjunction with prior First Amendment jurisprudence, maintains necessary constitutional safeguards for speakers and listeners...

The beeps and blips of today's modern video games, complete with graphic and sometimes interactive depictions of violence, warrants First Amendment protection, the Supreme Court ruled on Monday.

Standing firmly behind the First Amendment, Justice Antonin Scalia shot down a California law banning the sale of violent video games to minors in one of the term's hot-button cases, Brown v. Entertainment Merchants Association. The 7-2 decision brings First Amendment protections to the modern medium of video games. This important ruling is consistent with the Court's protection over the years as new forms of expression, dissemination and information emerge—think about radio, television, films and the internet which have been recognized for protection over the decades.

Extending the First Amendment to violent video games is also consistent with the Court's recent First Amendment decisions. In March, Snyder v. Phelps, held the free speech rights of offensive protesters outweighed the privacy rights of grieving families and last term, in Citizens United v. Federal Elections Commission, the Court held corporations have First Amendment rights.

More critical to the Court's decision this week was US v. Stevens, last term's case which refused to categorize the sale and distribution of videos depicting animal cruelty as outside the scope of the First Amendment. As a controlling precedent, Justice Scalia wrote that in Stevens "we held new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." Couple the Court's reluctance to expand the categories of speech that the government can restrict with modern technology and the widespread, cross-generational popularity of video games, and Brown is almost electrifying.

"[W]hatever the challenges of applying the Constitution to ever-advancing technology, 'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears," Justice Scalia wrote.

Applying a strict scrutiny analysis, the law's attempt to regulate the sale of violent video games to minors failed as a content-based restriction that was both underinclusive and overinclusive. To protect children, the law banned the sale to minors so-called violent video games. The law had a labeling requirement and the potential for a $1,000 fine. Challenged on facial grounds by a group of video game producers, California essentially created a new category of speech subject to regulation, punishment or censorship.

California hinged the law and its appellate arguments on the concept of "variable obscenity," the doctrine that criminalizes sexual content in the hands of minors under Ginsberg v. New York. However, sexual content and violent content, even in the hands of minors, are distinguishable to the point where Justice Scalia called the state's efforts a "shoehorn" attempt to create a new category of speech falling outside the scope of the First Amendment. Further, the law was "unprecedented and mistaken," Justice Scalia wrote.

The state's content discrimination singled out video game producers while children could be exposed to the same types of violent depictions in other media, even materials children are encouraged to access in schools. "Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why," Justice Scalia wrote.

Justice Scalia repeated a quip from oral arguments when he wrote that Grimm's Fairy Tales are "grim indeed" while other stories including Snow White and Cinderella have violent themes and depictions. Some staples of high school literature including The Odyssey of Homer, Dante's Inferno and Lord of the Flies depict the same graphic violence California sought to ban and punish in the form of video games.

"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) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection," he wrote.

For decades, lawmakers have attempted to enact and enforce content-based restrictions with the goal of protecting children. Comic books, pulp paperbacks, radio and films have all been the subject of regulatory attempts. The only category to survive First Amendment scrutiny over the years has been sexual content under Ginsberg because of the compelling government interest and proven harm that comes from children's exposure to this material.

However, in the past decade, courts have struck down attempts to regulate video games seven times, a point Justice Scalia reiterated. At the oral arguments in November, Justice Scalia aggressively questioned California's lawyers about the law and its censoring effect. However, in the opinion, Scalia did not entirely dismiss governmental concerns or the concerns of parents to protect their children from potentially harmful content. Scalia wrote that "[e]ven where the protection of children is the object, the constitutional limits on government action apply."

Justice Samuel Alito, joined by Chief Justice John Roberts, concurred, arguing that the law should have been shot down on vagueness rather than First Amendment grounds. Justice Alito described the types of games in graphic terms, and that reading violent content in a book is markedly different than the interactive experience of modern video games. Though he would not apply the First Amendment as extensively, he still felt the law lacked firm definitions. In dissent, Justice Clarence Thomas wrote the statute survived an originalist interpretation while Justice Stephen Breyer, who was openly skeptical at oral arguments, argued that the law was justified because the state had a compelling state interest.

Ultimately, the Court refused to carve out a new exception to First Amendment protection. Over the decades, the Court has found a compelling government interest to suppress or punish categories of speech where there is a provable harm and a compelling state interest: obscenity, incitement and fighting words. Requiring a compelling interest provides necessary constitutional safeguards for both speakers and listeners (or creators and players) and the government, intent on protecting citizens and their rights or simply keeping the peace. However, violent video games in the hands of minors certainly does not rise to the status of the other categories.

Justice Scalia also noted that the video game industry created its own ratings system for its games designed to provide parents with guidance. A voluntary ratings system takes the crucial step to remove the government from the game and the First Amendment lets the creators create and the gamers play.

Roy Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

Suggested citation: Roy Gutterman, Video Games and Free Speech: An Electrifying Decision, JURIST - Forum, June 29, 2011, http://jurist.org/forum/2011/06/roy-gutterman-video-games.php.

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