California's effort to prevent the sale of violent video games to minors produced some of the most amusing oral arguments at the Supreme Court we've ever seen, with Justice Samuel Alito poking fun at the originalism of Justice Antonin Scalia by saying, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?"
Whether he enjoyed them or not, the implication of Scalia's majority ruling in Schwarzenegger v. Entertainment Merchants Association is that he would have thought of them as being protected by the First Amendment. The EMA was dealt a substantial assist by the American cultural distaste for explicit sexuality as opposed to explicit violence, a preference enshrined in obscenity law. California tried to argue that the games in question were obscene and thus subject to regulation, but Scalia noted that "the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct[.]" According to the majority opinion, the First Amendment allows the government to regulate depictions of sexytime, not the sublime feeling of WTFPwning some poor n00b over Xbox Live.
Justice Stephen Breyer, in a separate dissent, expresses frustration at this double standard, asking "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?" Answer: The First Amendment as read by gun toting prudes. Breyer has the right argument, but in arguing the California law should have been upheld, the wrong conclusion. The right conclusion is that obscenity laws are stupid and unconstitutional.
Citing everything from Greek mythology to Choose Your Own Adventure books, Scalia argued that violent content, even of the kind that involves user participation, has been a long-established part of literature given to minors (emphasis original):
High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," Scalia notes dryly. "But these cultural and intellectual differences are not constitutional ones." Scalia has other jokes for the dissenters, citing the court's recent ruling on the constitutionality of "crush videos," he writes that unlike the underlying issue of animal cruelty present in that case, "There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable."
Alito, in his concurrence (joined by Chief Justice John Roberts), disagrees with Scalia's argument that there's little evidence violent video games are no more harmful than violent literature, citing the prevalence of racist and anti-Semitic video games. Scalia retorts that Alito's arguments vindicate the majority's view about the dangers of the proposed regulation and the possibility that "that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription." Alito also fears that absent the threat of federal regulation, the video game industries' voluntary rating system will disappear--but this fear seems overstated. The Motion Picture Association of America's rating system has no legal force, but major movie studios have nevertheless adhered to its rating system voluntarily.
Justice Clarence Thomas, for his part, cites Puritan parenting practices to argue that James Madison indeed would have hated video games (presumably not including those that involve burning witches at the stake). His dissent amounts largely to a nonsequitur, since nothing in the majority's ruling prevents parents from being as strict as they with in prohibiting their access to violent video games. Here, Scalia offers a pretty forceful defense of minors' free speech rights, one that seems somewhat inconsistent with the court's ruling in Morse v. Frederick, where it decided that a student didn't have the right to display a banner reading "Bong Hits 4 Jesus" at a school event.
As ever, the conservative justices develop a kind of reefer madness whenever marijuana is involved, and their originalist principles get tossed out the window whenever there's an opportunity to punch hippies in the face. Fortunately for the video game industry, gamers would rather smoke their weed than pretend to.
