Tuesday, June 28, 2011

Supreme Court Approves Violent Video Games, Scalia PWNS Fellow Conservatives

Congratulations to all of you kids out there on your recent legal victory, even though you're probably too busy playing Call of Duty right now to know what the heck I'm talking about.  In case you were wondering, your days of playing shoot 'em up video games have been secured for many years to come by the nation's highest Court in a 5-4 decision, Brown v. Entertainment Merchants Assoc., which held that the First Amendment does not allow the States to ban the sale of violent video games to minors. The Supreme Court, in a majority opinion authored by Justice Antonin Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan (a rare combination indeed), ruled that video games (even violent ones) qualify as First Amendment "Free Speech" just like books, movies, plays, cartoons and comic books.  Pursuant to this holding, the Court struck down a California law that sought to make it illegal to sell what it defined as "violent video games" to anybody under the age of 18, irrespective of whether the kid had his or her parents' permission or not.  What was also particularly interesting about this case is that conservative Justice Scalia, in rare form, went IN on his fellow conservative Justices, Clarence Thomas and Samuel Alito, who departed from his opinion on this issue.

Scalia basically starts off by acknowledging the general rule in First Amendment free speech cases which is this:  government cannot make laws that restrict our freedom of speech.  That's the general rule.  As with most general rules, there are, of course, a few recognized exceptions:  (i) fighting words, (ii) speech that incites people to violence, (iii) defamation or slander and, last but not least, (iv) obscenity.  Now when it comes to obscenity, the Supreme Court is very specific and very cautious as to what constitutes "obscenity," since, after all, one man's obscenity could be argued as another man's art.  Scalia notes that, to date, the Court has "been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct."  Majority opinion at 5 (emphasis supplied).  So, by Scalia's view, that distinguishes this statute from a statute that, for example, attempts to make it illegal to sell pornography to minors.  Scalia goes on to say that kids in America have been exposed to violence for centuries, and, as evidence of this fact, he cites to common children's literature such as Grimm's Fairy Tales, Cinderella, Hansel & Gretel, Homer's Odysseus, and Lord of the Flies, which all have violent episodes at some point during their respective stories.  He concludes that California's law against video games does not pass the First Amendment's "strict scrutiny" test for 2 reasons: (i) the law is underinclusive because it was only aimed at violent video games as opposed to being aimed at ALL violent images that effect children such as cartoons, comic books, etc.; and (ii) the law is overinclusive because it would have penalized children who actually received the green light from their parents to play violent video games.

Alito concurs with the Court's ultimate decision to strike down California's law, but he doesn't agree with how the Court arrived at its conclusion.  Alito basically takes the position that violent video games are not like anything our kids have ever been exposed to before.  He goes on at length to describe how wrong violent video games are for kids, stating that:

In some of these games, the violence is astounding.  Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws.  Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.  They cry out in agony and beg for mercy.  Blood gushes, splatters, and pools.  Severed body parts and gobs of human remains are graphically shown.  In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed...this experience is different from reading a book, listening to a radio broadcast, or viewing a movie."  Alito concurring opinion at 14-17.

Scalia sharply disagrees with Alito's argument, saying:

Justice Alito recounts all these disgusting video games in order to disgust us - but disgust is not a valid basis for restricting expression.  Majority opinion at 11.  Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature.  Well of course it is different in kind...[r]eading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.  But these cultural and intellectual differences are not constitutional ones.  Majority opinion at 9, n. 4.

Justice Thomas, in a rare departure form his conservative brethren on the bench, completely disagreed with Scalia's analysis. Thomas takes the "Originalist" approach and argues that the "original meaning" of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."  Thomas dissenting opinion at 1.  In other words, kids don't have any free speech rights and neither do video game producers who sell their games to kids because the founding fathers didn't intend to include them in the First Amendment when they wrote it way back in 1791.   Scalia, who is usually joined by Thomas in every opinion that he writes, seems to have had enough of Thomas' so-called Originalism on this issue and comes back hard on Thomas:

Justice Thomas ignores the holding of [Erznoznik v. Jacksonville], and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents' consent.  He cites no case, state or federal, supporting this view, and to our knowledge there is none.  Majority opinion at 7-8, n. 3.

It is one thing for the Justices to disagree from time to time about the precedent used by the other Justices on a particular issue.  It is an entirely different matter altogether for a Justice to say that another Justice has NO precedent for their argument whatsoever.  Folks, this is the equivalent of a Supreme Court Justice turning to another Justice and saying "Dude, you obviously have no idea what the F*#@ you're talking about!!!"

We don't tend to hear too much about Justice Stephen Breyer.  Along with the 3 ladies of the Court, he is usually the fourth member of the progressive voting block on all the hotly contested issues that are divided 5-4 down ideological lines.  But, other than that, he sort of just stays quiet and hangs out in the background, rarely writing an opinion one way or another on a given case.  Breyer argues that the California law actually does pass the First Amendment's "strict scrutiny" test because:

The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child from or adolescent from obtaining a game provided a parent is willing to help.  All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.  Breyer dissenting opinion at 10.
So Breyer, unlike the Majority, doesn't see anything wrong with the law as it is written - a point so basic that Scalia doesn't really bother to launch a counter-attack against Breyer the same way he did against Alito and Thomas.

This case presents many good questions:

1. Who has the best argument of the 4 opinions and why?
2. Is the "Originalist" method of interpretation no longer a valid way to interpret the Constitution?
3. Should we as a society keep violent video games out of the hands of our kids? 
4. Do you believe that violent video games make the people who play them more prone to violence.
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