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5 Lessons from the Supreme Court's Video Game Censorship Ruling

By June 27, 2011

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Earlier today, the Supreme Court ruled 7-2 in Brown v. Entertainment Merchants Association that a California law restricting the sale of video games to minors is a violation of the First Amendment's free speech clause.

The ruling tells us five things:

1. The FCC's indecency ban is on thin ice. While it's too early to celebrate, the logic put forth in this ruling suggests a very strong possibility that the Supreme Court will both narrow and clarify the FCC's authority to regulate broadcast content. (Today, the Court agreed to hear the indecency case.)

2. Sex is dirty, violence is clean. The majority opinion cited United States v. Stevens (2009) more often than any other recent ruling, drew on violence in fairy tales as evidence that U.S. culture has not historically regarded violent content as inappropriate for children, and established a second, independent standard for sex. This suggests that content regulation, in the FCC ruling and elsewhere, is likely to focus exclusively on sexual content.

3. Minors still have constitutional rights according to the Court majority... Which is very good news, and something we should not take for granted considering recent rulings on the free speech rights of students.

4. ...but Clarence Thomas does not believe in the rights of minors, period. After recently holding that minors do not have Fourth Amendment rights in his Stafford v. Redding dissent, Thomas has now moved on to argue that they do not have First Amendment rights, either. He cites the Sharia-style legal codes of colonial Massachusetts as a binding basis for constitutional interpretation without any apparent sense of irony:

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority ... Parents had total authority over what their children read ... In light of this history, the Framers could not possibly have understood "the freedom of speech" to include an unqualified right to speak to minors.
No word on whether Justice Thomas also believes that married men have similarly absolute authority over their wives, as was also taught in colonial Massachusetts, but at this point I wouldn't be terribly surprised if he did.

5. Antonin Scalia can still write a great majority opinion. Scalia is so conservative on some issues that it's easy to forget that there are cases in which his eloquence and formidability can be used in the service of civil liberties. This was certainly in evidence today, when Scalia, writing for the majority, handed down zingers like this:

The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning) ... They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.
Elsewhere, he argues:
Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny ...
But his most devastating critique is directed at Clarence Thomas' dissent:
Justice Thomas ignores the holding of Erznoznik, 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.
All told, this ruling demonstrated--in the contrast between justices Scalia and Thomas--the difference between a philosophically conservative justice who has a narrow but consistent definition of civil liberties, and a philosophically unengaged justice whose shifting definition of civil liberties is, in most cases, too narrow to be of any use at all.

Related: History of Censorship in the United States

Comments

August 5, 2011 at 7:37 am
(1) LanthanumK says:

If minors have a right to do what they want, parents should have a right to punish them.

November 29, 2011 at 6:36 pm
(2) Anonymous says:

To LanthanumK, though you will likely never read this:
They do – where has anyone said they don’t? I don’t think the Supreme Court is telling parents they can’t punish children for playing games the parents judge innapropriate for their child, if that’s what you somehow got out of this case.

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