WRITING for the Supreme Court majority that struck down a California law banning the sale of violent video games to children yesterday, Justice Antonin Scalia equated electronic games that enable a player to kill, maim, dismember or sexually assault an image of a human being with Grimm’s Fairy Tales. Exhibiting what appears to be a stunning obliviousness to the power of the image over the written word, as well as an unfamiliarity with both video games and fairy tales, Scalia included “Cinderella,” “Snow White” and “Hansel and Gretel” among the stories he likened to electronic games that depict human beings blown up, raped or torn apart.

The First Amendment rights of the video game industry, which takes in more than $10 billion annually, have been affirmed. Common sense, backed by studies that show that violent video games increase aggression, has been discarded once again in favor of abstract individual rights. Freedom of expression is held more sacred than the right of the community to protect the young.

                                                     — Comments —

Aaron writes:

For a good breakdown of the actual ruling, please look here and here.

I agree with you that a law limiting the sale of violent games to  minors would be a good thing, but I believe that the majority was correct in its decision. The majority opinion written by Scalia was clearly pointing out the ghastly nature of the games itself, but also found no basis in law or precedent for upholding this bill on constitutional
grounds. An activist court is a bad thing, regardless of whether it returns verdicts that we, as traditionalists, favor.

Also, frankly, the law in California is very narrow in scope; I see no reason for it to single out video games among forms of media. As a software engineer who was one time a gaming enthusiast, this is an area of law that I have followed for many years. The vast majority of the studies I’ve read of violent video games are inconclusive when
compared to control tests with other forms of media (i.e., violent movies, images produce the same effects in children). I would personally like to see a ban on the sale of violent books, movies, games, posters, etc. across the board for minors, and a much stricter standard under which they are enforced. This is actually something that Scalia’s opinion noted.

The video games industry has also been more consistently excellent at self-regulating sales to minors; the ESRB rating system is more detailed and granular than the MPAA or RIAA equivalents, and the stores that specialize in such merchandise are much more likely to deny sales based ratings, even though there is no law forcing them to, than any other equivalent.

Scalia also did mention the constitutional framework under which said censorship could happen: the Miller Test. There is no way in which this was applied.

In short, the California law is bad law, and does not pass constitutional muster. I’d love to see repealed the 14th ammendment, which expanded the authority of the bill of rights to be understood to restrict the states as well; it’d be nice if the states did have the rights to do this sort of thing. But they don’t, therefore SCOTUS decided correctly.

Laura writes:

Thank you. You raise good points as to the narrowness of the California law. At VFR, Lawrence Auster addresses the issue of the 14th amendment. He writes of the justices in this ruling:

They’re simply following the long established but baseless and unconstitutional jurisprudence proceeding from the Incorporation Doctrine, under which the First Amendment, including the phrase “Congress shall make no law … abridging the freedom of speech,” applies not just to the Congress but to state and local governments. As long as the Incorporation Doctrine and the decisions based on it endure, laws such as California’s outlawing violent video game sales to minors are doomed. I’m astonished that California legislators imagined that they would be able to get this past the U.S. Supreme Court.

Up to 30 or 40 years ago, conservatives understood that the Incorporation Doctrine (which “incorporates” the Bill of Rights, with its restrictions on the Congress, into the 14th Amendment, with its restrictions on the states) was a major engine of modern liberal statism. Today, 99.7 percent of conservatives don’t know what the Incorporation Doctrine is, let alone oppose it.

Laurence Butler writes:

I am not as ready to judge the Supreme Court ruling on the California video game regulations. On one hand, it’s true that the Court’s ruling was quite a stretched application of the first amendment. Even more troubling is the precedent it sets, which I imagine will allow for the unrestricted sale and viewership or pornography as well, if the graphic sexuality and violence in these games is now secured for sale by the government.

On the other hand, the Court’s ruling does put the responsibility back with the parents, and any hesitance to expand federal authority into the realm of individual parenthood is also a good thing. I find the Supreme Court’s rationale very troubling, but the (perhaps unintended) direct result of leaving such decision up to parents is also welcome.

I think you put it very well when you said, “Freedom of expression is held more sacred than the right of the community to protect the young.” This is certainly true with our current state of society, but I think this ruling may actually prod communities and parents to protect their young more actively, instead of relying on the government to do it. If parents decline to care, decline this responsibility, then no court ruling compares to that problem.

Laura writes:

Laws on restricted sales of graphic violent material are secondary to parental supervision, but they still seem a good thing in the abstract. The barring of minors from R-rated movies, for instance, works. 

Mr. Butler writes:

I agree, or at least, I would take laws/age restrictions against violent or sexually explicit video games as a sign of a conscientious and morally upright culture. However, I doubt that was really the motivation behind the California law, keeping in mind the other cultural debaucheries it upholds.

Regarding the protection of minors from R-rated movies, that’s even more curious to me, because it’s not illegal for a minor to purchase an R-rated movie, I think, but said minor can still not see said R-rated movie up to one year before he or she is eligible to join the armed forces. Some of these laws just seem sort of arbitrary, like the legislators started off with some semblance of moral guidance, and then forgot it halfway through and couldn’t figure out a better way to quantify the law than a random guess at appropriate age distinctions.

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