On Monday, in the case of Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law prohibiting the sale of violent video games to children. In a 7-2 holding authored by Justice Antonin Scalia (with Justices Alito and Roberts concurring and Justices Thomas and Breyer dissenting), the Court ruled that video games enjoy essentially the same constitutional protection as books, with violent video games being, in Scalia’s estimation, much like modern day Grimm’s Fairy Tales.
Of course, there is very little similarity between reading (or, for that matter, watching film adaptations of) Snow White or Cinderella and deciding whether to murder, disembowel, or rape one’s victim in a video game (all of which, as Justice Alito details, are features of some of these games). That the Court’s majority fails to see this distinction shows how inapt it is to have that body engage in such line-drawing for an entire republic. Further demonstrating this, Scalia also compares such video games to The Odyssey, and he somewhat mystifyingly declares that literature and video games are similarly “interactive.”
In his opinion, Scalia expresses support for Court precedent, saying that states can lawfully prevent sexually explicit material from being sold to children, while at the same time maintaining that states cannot ban games that (among other things) involve having children play the role of sexual predator. The former, according to Scalia’s moral compass, is “obscene,” while the latter is not. Needless to say, this distinction is not found in the Constitution.
In dissent, Justice Breyer asks, “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”
Constitutionally, this case hinges on the First Amendment’s protections of freedom of speech and of the press. When contemplating video games, few people likely think of the terms “speech” or “the press” — and for good reason. Most video games are not, at least principally, a form of either. Sure, they may involve or include some degree of speech, but if everything that involved or included speech were categorized as enjoying First Amendment protections, then nearly everything that is currently illegal would thereby become legal.
The Constitution wisely carves out protections for the spoken and written word, the two principal forms of language and communication — particularly of political communication. Beyond that, it offers no express guarantee of freedom of expression. Such a guarantee would necessarily have to be qualified, as few would tolerate expression in the forms of, say, flying a plane into the World Trade Center, painting graffiti on a public monument, or even urinating on a public building.
Justice Scalia’s response — much like when he signed onto Justice Brennan’s 5-4 opinion in the flag burning case of Texas v. Johnson — is that essentially the only real harm is physical harm, and therefore almost no expression can be outlawed unless it causes physical harm. This contention, however, reflects Scalia’s personal opinion — and the opinions of some justices before him — not the text of the Constitution.
Instead, the Constitution says, “Congress shall make no law…abridging the freedom of speech, or of the press.” It’s quite a jump from these words to claiming that a state (not Congress) or a locality cannot prevent the sale of indecent or morally warping video games to minors. The Court’s role, as understood by the Founders, was to apply the law as written and to void clearly unconstitutional acts — the clear-violation standard. But when a violation was not clear, the Court was to defer to legislatures, the elected representatives of the people.