Posted Jun 27, 2011 02:20 pm CDT
The U.S. Supreme Court has struck down a California law barring the sale and rental of violent video games to minors.
The court ruled 7-2 that the law violates the First Amendment. Justice Antonin Scalia wrote the majority opinion (PDF). “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,’ ” Scalia wrote.
California’s argument in support of the law could stand a better chance if the nation had a history of restricting violent fare for children. But violence pervades the literature of children and high-school students, Scalia said.
“Grimm’s Fairy Tales, for example, are grim indeed,” Scalia wrote. “As her just deserts 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.’ … Cinderella’s evil stepsisters have their eyes pecked out by doves. …. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”
Scalia’s opinion cites last year’s 8-1 decision in United States v. Stevens, which struck down a law that bars depictions of animal cruelty. The lone dissenter in that case, Justice Samuel A. Alito Jr., concurred in Scalia’s opinion, a surprise vote given his comments during oral arguments, SCOTUSblog says.
Alito wrote in his concurrence that the California law must fall because it does not define violent video games with specificity, but he criticized Scalia’s approach. “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar,” he wrote. Chief Justice John G. Roberts Jr. joined Alito’s opinion.
In Scalia’s view, Alito said, “Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in ‘kind’ from reading a description of violence in a work of literature. … The court is sure of this; I am not.”
Justices Clarence Thomas and Stephen G. Breyer wrote separate dissents. Thomas argued that the Founders did not interpret freedom of speech to include a right to speak to minors without going through their parents or guardians, or a right for minors to access speech.
Breyer argued the statute can be upheld under First Amendment precedent. “California’s law imposes no more than a modest restriction on expression,” he wrote. “The statute prevents no one from playing a video game, prevents no child or adolescent from obtaining a game provided a parent is willing to help.”
The case is Brown v. Video Software Dealers Association.
ABAJournal.com: “Supreme Court Accepts Free Speech Challenge to Ban on Violent Video Games”
Updated version of this story corrected to say Justices Thomas and Breyer wrote separate dissents.
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