As had been expected by court watchers, the Supreme Court Monday said that California cannot outlaw sales of violent video games to minors. In an opinion by Justice Antonin Scalia, the Court ruled that video games are protected by the Constitution’s First Amendment, and California had not adequately justified infringement of games’ protections of free speech.
Announcing the decision, Scalia pointed out that the arguments being raised against video games have also been brought against motion pictures, comic books and “penny dreadful” novels, and yet no one had ever shown a causal link between violent media and actual violence.
Scalia noted that the California law did nothing to regulate Saturday-morning Bugs Bunny cartoons or violent children’s stories like Grimm’s Fairy Tales, Snow White (in which the wicked queen is forced to dance in red hot slippers until she dies), Cinderella (in which the evil stepsisters have their eyes picked out by doves), or Hansel and Gretel (in which the children bake their captor in an oven). The singling out of video game violence, Scalia said, shows the law is unconstitutionally underinclusive, prohibiting some violent media while ignoring other.
Further, Scalia said the law allowed parents to buy the games for their children, so the state did not fully prohibit children from having the games.
Justice Scalia recognized that the Supreme Court has in the past allowed age-specific regulations of speech, but only for pornography. He said that pornography regulations for children were allowed, since our country has a long history of outlawing obscenity, and pornography regulations are adjustments of obscenity laws with different standards for children.
The Court’s decision was 7-2, with Justices Clarence Thomas and Stephen Breyer writing dissents. Thomas, writing only for himself, said that the First Amendment did not protect a right to speak to minors without their parents’ consent, so he would have upheld the law.
Breyer, also writing for himself, said that California had a compelling state interest in helping parents control their children’s access to violent video games. In his opinion, he included a list of peer-reviewed articles that he says show a link between violent video games cause psychological harm to minors.
Justice Samuel Alito and Chief Justice John Roberts did not sign on to the majority opinion, but they agreed that the law is unconstitutional. Alito wrote separately to say that California’s law does not define “violent video games” clearly enough for game makers to know what is allowed and what is not, and therefore the law is unconstitutionally vague. Alito also said he thought the majority too easily dismissed argument that video games are different from other media