David Hudson [Scholar, First Amendment Center]: The US Supreme Court’s violent video games decision in Brown v. Entertainment Merchants Association continued the Court’s trend of limiting legislative attempts to create new categories of unprotected speech. It rejected the concept of violence as obscenity, refusing to expand that category beyond its sexual moorings.

The final result comported with what many in the First Amendment community had predicted. After all, every lower court to analyze a similar violent video game law or ordinance had invalidated them. However, the case was argued on November 2 and as I mentioned in a previous analysis, speculation grew as to the reasons for the long delay.

Fortunately, a majority of the Court reiterated the line of thinking that unprotected categories must be rooted in history and tradition rather than created willy-nilly by legislators.

Justice Frank Murphy articulated the categorical approach years ago in the fighting words decision Chaplinsky v. New Hampshire when he wrote: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words…”

The Court still utilizes the categorical approach to determine whether speech constitutes obscenity, incitement to imminent lawless action, true threats, child pornography, libel, fighting words and a few others.

Last term in the dog-fighting video case US v. Stevens, Chief Justice John Roberts refused to create another exception for images of animal cruelty, writing that past decisions such as the child pornography case New York v. Ferber “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Justice Antonin Scalia in his majority opinion wrote that Stevens controlled as the leading precedent. He emphatically rejected California lawmakers “freewheeling” attempt to “shoehorn speech about violence into obscenity.” He reiterated that unprotected categories of speech must be rooted in history and tradition—not created out of whole cloth by legislatures based on uncertain social science.

I attended the Court’s session on June 27 when the justices handed down the violent video game decision and three others. Justice Scalia appeared to relish reciting the portion of his opinion where he cited a litany of examples of violence in children’s fairy tales. Last November at oral argument, Scalia had elicited laughter from the gallery when he commented: “I mean, some of the Grimms’ fairy tales are quite grim, to tell you the truth.” He remembered his laugh-inducing line when writing his majority opinion: “Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.” He then cited tales of violence besetting Snow White, Cinderella and Hansel and Gretel.

Scalia served as the Grim Reaper for the law would expand obscenity from sex into violence.

That was good for the First Amendment.

Suggested Citation: David Hudson, Supreme Court affirms that violence is not obscenity, JURIST—Hotline, June 28, 2011, http://jurist.org/hotline/2011/06/david-hudson-video-games.php.