Why the Supreme Court shot down California’s ban on violent video games

The U.S. Supreme Court has struck down a California law that attempted to ban the sale of violent video games to minors. In a 7-2 decision led by Justice Antonin Scalia, the court decided that video games should be protected under the right to free speech.

“Like  the  protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Scalia wrote in the majority opinion. “That suffices to confer First Amendment protection.”

Scalia continued:

“California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just desserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.”

In a dissenting opinion, Justices Stephen Breyer and Clarence Thomas wrote that the First Amendment does not “stretch” so far as to include the sale of video games to minors.

Breyer wrote:

“California’s law imposes no more than a modest restric­tion on  expression.   The statute prevents no one from playing a video game,  it prevents no adult from buying avideo game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. §1746.1(c).  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.”

Thomas wrote:

“The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.”

Some in Seattle’s burgeoning gaming community applauded the decision.

“Hopefully politicians will get the message now, because it puts video games in line with the protections offered to other forms of expression,” said Todd Hooper, CEO of Seattle’s Zipline Games.

A Washington state law requires retailers to inform consumers about video game ratings, with Washington State Attorney General Rob McKenna urging parents to pay attention to those ratings.

You can read the full opinion on the California case — Brown v. Entertainment Merchants Association —  here.

  • Anonymous

    I liked this line from the opinion: “[W]e have long recognized that it is difficult to distinguish politics from entertainment.”