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SCOTUS Deems Video Games Protected Speech

Nick Cavicchio 06/27/2011 Features

Earlier today (June 27th), the US Supreme Court announced its historic ruling in the case of Brown v. EMA (formerly Schwarzeneggar v.  EMA). Thanks to this ruling, as of now, video games are officially protected speech, with the weight and precedent of a Supreme Court ruling to back it up. While perhaps not “historic” in the same sense as the likes of Plessy v. Ferguson, Brown v. Board or Roe v. Wade, it is nonetheless a landmark in the history of gaming.

Today’s ruling was, I must admit, a genuine surprise to me. Not only did the Supreme Court solidify the standing of video games as protected speech, they did so with a 7-2 majority! In all honesty, while there was little doubt in my mind that the Court would uphold the District Court and Ninth Circuit rulings, I expected the vote to be far closer, perhaps even 5-4. Regardless, this represents the culmination of a decade of litigation regarding the subject of violent video games, much of it spearheaded by Jack Thompson, a since-disbarred attorney infamous in gaming circles for his erratic behavior and wild assertions. Of course, with nearly a dozen lower court cases unanimously rejecting laws like California’s, if anything it is more of a relief than a surprise to see SCOTUS rule in the industry’s favor.

Particularly gratifying to politically savvy gamers is the fact that the Court’s opinion (authored by Justice Scalia) in many respects echoes arguments gamers have been espousing for years. Including a number of statements regarding the unconstitutional nature of these laws, the fact that video games are not the first medium to suffer this scrutiny (a list that includes films, comic books, and the so-called penny dreadful of the nineteenth century) and the fact that even California acknowledged that it could not demonstrate a direct causal link between violent video games and violent behavior. More than gratifying, this is vindicating for the games-as-art crowd, of which I firmly count myself as a member (if you disagree, go play something like Ico or Bioshock, and then we’ll talk). While not, strictly speaking, a formal declaration of artiness, the fact that the highest court in the land has placed games in the same category as the works of William Shakespeare

Key to understanding the ruling (from a legal standpoint) is the following quote from Scalia’s opinion: “As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause to the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’” To elaborate, the case Scalia is referring to is United States v. Stevens, which went before the Court last year. At issue in Stevens was a statute that criminalized the commercial production, sale or possession of depictions of animal cruelty. Ultimately, the Court struck down the statute, noting (as Scalia does when drawing the comparison in his opinion) that “There was no American tradition of forbidding the depiction of animal cruelty – though States have long had laws against committing it.” Like Brown, Stevens was a case that sought to categorize a particular depiction of violence as unprotected speech, justifying it on the grounds of obscenity. However, in the legal sense, the term “obscenity” applies strictly to sexual material – particularly pornography. And as… distasteful as animal abuse (or, to some parties, Grand Theft Auto) may be, it is certainly not pornography.

And so another in the long line of anti-gaming laws has been struck down in court. But this time, it was in the Supreme Court of the United States, setting a precedent that will endure for decades to come, or at least until some new medium comes along for the fear mongers to target. So gamers everywhere, rejoice! The war may not yet be over, but the day is ours, and an unquestionably major battle has been won. Now pat yourselves on the back and pick up a controller, I know I’m going to. But first, I want to leave you with some highlights from the Court’s opinion.

  • The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.
  • 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). That suffices to confer First Amendment protection.
  • And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears.
  • No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.
  • Such laws do not enforce parental authority over children’s speech and religion, they impose governmental authority…
  • California’s argument would fare better if there was a longstanding tradition in this country of restricting children’s access to depictions of violence, but there is none.
  • 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).
  • Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games.
  • California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.
  • Even where the protection of children is the object, the constitutional limits on governmental action apply.

Stay tuned to Comic Booked for more coverage of this momentous ruling, and if you want to read the full opinion (including Justice Alito’s concurrence and Justice Thomas’s dissent), you can do so here.



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About The Author

Comic Booked's Managing Editor and self-appointed Spider-Man guru. Nick is a geek of all flavors, loving comics, video games and everything in between. Despite having no idea how he landed this gig, he is enjoying every minute of it. +Nick Cavicchio

  1. Robb Orr 06/28/2011 at 3:00 pm

    A win for free speech!

    • Nick C 06/28/2011 at 6:32 pm

      Hard fought, and well earned!

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