You would think the sale and distribution of video games to minors, which depict the killing, maiming, dismembering, or the sexual assault of a human being could be prohibited. Not so, according to the latest United States Supreme Court decision on free speech in Brown v. Entertainment Merchants Association. In this case, California passed a law prohibiting the sale or rental of “violent video games” to minors, and required their packaging to be labeled “18.”

Kids Playing Video Games

The law covered video games that depicted the killing, maiming, dismembering, or sexually assaulting of  a human being, if it depicts acts in a manner that a reasonable person, considering the work as a whole, appeals to a deviant or morbid interest of minors; provided, it is patently offensive to the prevailing standards in the community, as to what is suitable for minors and the depiction lacks serious literary, artistic, political, or scientific value for minors. Justice Scalia, writing for the majority of the Court held, that violent video games are protected under the free speech clause of the First Amendment because video games communicate ideas and social messages distinctive to the player’s interaction with the virtual world.

Justice Scalia writes that under the free speech clause of the First Amendment, esthetic and moral judgments about books, plays, art, music, movies and video games are for individuals to make, not for the government to decree. The basic principle of freedom of speech and press does not vary depending on the medium of communication. Government has no power to restrict expression because of its message, its ideas, its subject matter or its content. Relying in part upon an earlier decision in Stevens, in which the court invalidated a law prohibiting depicting cruelty to animals the Court, held in this case that the California law violated the First Amendment free speech clause because it was a content-based restriction on speech. Utilizing a historical analysis the Court concludes there was no American tradition forbidding the depiction of violence. In fact, there is a long tradition in literature of descriptions of violence from Homers Odyssey, Grimm’s Fairy Tales, and the Lord of the Flies. After all, in Hansel and Gretel the children baked their captor in the oven and in Lord of the Flies the children savagely murder another child. Justice Scalia notes there appears to be no shortage of gore in the books we give and sometimes require children to read.

What about the impact of violence on children, particularly when it involves participation in the act of violence even though it is only virtual? While there was  scientific evidence to support the argument that participation in virtual acts of violence increases the hostility and apathy to those around us, Justice Scalia disputes the efficacy of the scientific evidence and states the evidence was not sufficient to overcome the strict scrutiny standard although this case never considered the evidence since it involved only a facial challenge to the law.  The Court applied the strict scrutiny test, which requires a compelling government interest that is narrowly drawn to serve that interest. Justice Breyer argued in his dissent that there was a basis to overcome the strict scrutiny test and that the law had a minimum impact on free speech since it applied only to children under the age of 17 who were prohibited from buying violent video games without their  parents permission.

This decision makes it clear that the courts will not tolerate any limitations on the right of free speech, even for children, except in those areas where there is long-standing tradition of regulation like obscenity and fighting words or where there some other basis  sufficient to overcome the strict scrutiny test. Municipalities should avoid getting into battles involving laws regulating free speech, unless they have been advised by legal counsel that there is a constitutional basis for the ordinance.

Howard Wright @ 2011