Supreme Court to Tackle Violent Video Games

[EmptyTimCup]

Held: The Act does not comport with the First Amendment. Pp. 2–18.
(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a newand different communication medium. Joseph Burstyn, Inc. v. Wil-son, 343 U. S. 495, 503. The most basic principle—that governmentlacks the power to restrict expression because of its message, ideas,subject matter, or content, Ashcroft v. American Civil Liberties Un-ion, 535 U. S. 564, 573—is subject to a few limited exceptions for his-torically unprotected speech, such as obscenity, incitement, and fight-ing words. But a legislature cannot create new categories ofunprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, Cali-fornia’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults isnot uncritically applied to children. Instead, the State wishes to cre-ate a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting chil-dren’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the playerparticipates in the violent action on screen and determines its out-come, is unpersuasive. Pp. 2–11.
(b) Because the Act imposes a restriction on the content of pro-tected speech, it is invalid unless California can demonstrate that itpasses strict scrutiny, i.e., it is justified by a compelling governmentinterest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy-chological studies purporting to show a connection between exposureto violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demon-strated effects are both small and indistinguishable from effects pro-duced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regula-tion is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are pro-hibited from purchasing violent video games have parents who dis-approve of their doing so. The Act cannot satisfy strict scrutiny. Pp. 11–18.
556 F. 3d 950, affirmed.

 

[EmptyTimCup]

Erznoznik v. Jackson-ville, 422 U. S. 205, 212–213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640–641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214.3

Interesting Argument Thomas made .......

3 JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken towithout their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent.

the footnotes are more interesting than the text:

4 JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. 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—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as muchentitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).

5The crusade against comic books was led by a psychiatrist, Frederic Wertham, who told the Senate Judiciary Committee that “as long asthe crime comic books industry exists in its present forms there are nosecure homes.” Juvenile Delinquency (Comic Books): Hearings before the Subcommittee to Investigate Juvenile Delinquency, 83d Cong., 2dSess., 84 (1954). Wertham’s objections extended even to Supermancomics, which he described as “particularly injurious to the ethical development of children.” Id., at 86. Wertham’s crusade did convince the New York Legislature to pass a ban on the sale of certain comic books to minors, but it was vetoed by Governor Thomas Dewey on the ground that it was unconstitutional given our opinion in Winters, supra. See People v. Bookcase, Inc., 14 N. Y. 2d 409, 412–413, 201 N. E. 2d 14, 15–16 (1964).

 

[EmptyTimCup]

JUSTICE ALITO has done considerable independent re-search to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic clean-sing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: 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.

 

[EmptyTimCup]

Oooooo Snap !!!!

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,6 and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo-sure 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.7

Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media.In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced bytheir exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), id., at 1270, or even when they “vie[w] a picture of a gun,” id., at 1315–1316.8

 

[EmptyTimCup]

Foot Note:

But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmentalrestriction of free expression: for example, the problem of encouraginganti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophyhostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)),or the problem of encouraging disrespect for the Nation’s flag (Texas v. Johnson, 491 U. S. 397 (1989)).

JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissentingopinion) (listing competing academic articles discussing the harmful-ness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 15. Similarly, JUSTICE ALITO says he is not “sure” whether there are any constitutionally dispositive differences between video games and othermedia. Post, at 2. If that is so, then strict scrutiny plainly has not been satisfied.

 

[EmptyTimCup]

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. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive,we do not mean to demean or disparage the concerns that underlie the attempt to regulate them—concerns that may and doubtless do prompt a good deal of parental oversight.We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571– 572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.

 

[Tilted]

can you summarize at some point the decanting Justices argument ...


I agree we should keep violent video games from 10 yr olds, although I think PARENTING is the bigger issue .......... we did not have such things when Dalhmer was munching Asians in the 90's

I haven't read Justice Breyer's dissent yet.

As for Justice Thomas', the essence of his (legal) position is that "'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians."

More from Justice Thomas (citations omitted):

In my view, the "practices and beliefs held by the Founders" reveal another category of excluded speech: speech to minor children bypassing their parents. 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. The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

Justice Thomas' dissent spends a fair amount of time going through pre-Founding Era, and then Founding Era, attitudes about children and the role of parents with regard to their upbringing. It's interesting, even if not particularly persuasive with regard to the general merits of the decision.

 

[EmptyTimCup]

It's interesting, even if not particularly persuasive with regard to the general merits of the decision.

that was mine as well ... I agreed with the majority


nice argument ...... little merit on the facts of the 1st A

 

[Mongo53]

So what I gather, the justices opinions fall along the lines of:

• Parents can make kids under 18 do what they want.
• The state can't make kids under 18 do what it wants.
• There may be a bit of a balance of what the state can do to help parents protect their kids, but they have to draw the line at the state doing the parents job for them. (Arguably, the state becomes the parents then, don't they?)
• Sure, you can't deny some literature and entertainment is better than others, but WTF does that have to do with the Constitution?