Issue 115, Winter 2011

Video Games
Who would have thought that one of the most expansive First Amendment decisions would involve violent video games? That’s what happened in June when the Supreme Court struck down a California statute that restricted minors’ access to violent video games (see CN 112 & 113).

Justice Scalia, writing for the majority, held that video games are protected by the First Amendment: “Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages….” Government may not regulate “the ideas expressed by speech – whether it be violence or gore, or racism.” He thus rejected the argument that “low value” speech or speech that may have “social costs” can be treated differently under the Constitution. He also refused to extend the definition of obscenity to include violence.

Perhaps the most significant holding in the case has to do with the rights of minors. The opinion explicitly recognized that government can restrict the rights of minors “only in narrow and well-defined circumstances,” which “does not include a free-floating power to restrict the ideas to which children may be exposed…or the power ‘to protect the young from ideas or images that a legislative body thinks unsuitable for them.’” “Even where the protection of children is the object, the constitutional limits on governmental action apply.” The decision thus leaves it up to individual families to set their own rules, without imposing “what the State thinks parents ought to” do.

The opinion was not unanimous. Justice Thomas dissented on the ground that parents have “absolute authority over their minor children” and that children have no legal rights other than those granted by their parents. Justice Breyer also dissented in reliance on studies (dismissed by the majority) claiming that violent video games are associated with aggressive behavior. He would analyze the statute by the standard used in obscenity cases. Justice Alito and Chief Justice Roberts, concurring, expressed the view that video games are qualitatively different from other media, and that a “more carefully worded law might survive constitutional scrutiny”.

For the time being, the debate over regulating violent content is settled as a legal matter. Of course, that does not mean that the discussion is over.

FCC Updates
We warned you it might happen in the last issue of CN. Broadcast decency is, once again, back in the Supreme Court. Ever since the 1978 ruling permitting the FCC to restrict broadcasting “indecent” content, the clash between the FCC’s regulatory activities and the First Amendment has been the subject of almost non-stop litigation.

The current case, FCC v. Fox Television Stations, et al., focuses on five broadcasts, four of which involved a “fleeting expletive,” and one of which involved a scene of a nude woman getting into the shower. One of the offending instances comes from Cher’s speech at the Billboard Music Awards: “People have been telling me I’m on the way out every year, right? So fuck ‘em.” The FCC found the content “patently offensive as measured by contemporary community standards for the broadcast medium” and found that it “referred to sexual or excretory activities and organs.”

The Second Circuit Court of Appeals held that the FCC’s indecency policy “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” The court later extended the ruling to the broadcast involving nudity.

Multiple issues face the Supreme Court: How do the vast technological changes since 1978 affect the FCC’s role in policing broadcast decency? What about changes in community standards? And is it even possible to speak of community standards in a nation of people with such diverse views and beliefs? How can decisions affecting the entire nation be based on the beliefs of only some of its citizens?

It would be refreshing if the Court actually resolved the main issue that spawned 35 years of litigation: should the government be deciding what people can see on TV and hear on radio in the name of protecting children, or is that the job of parents? In our view, the answer is clear.