On June 27, 2011, the Supreme Court put an end to the attempts of state and local lawmakers to censor violent video games. Or at least, one hopes so. After two decades of political grandstanding, vaguely drafted laws, and unproven claims that “excessive” or “gratuitous” violence in this particular medium of entertainment has harmful effects on children and teenagers, Justice Antonin Scalia’s opinion for five justices of the Court in Brown v. Entertainment Merchants Association made clear that video games, like books, plays, and movies, qualify for First Amendment protection, and that legislators cannot simply create a new category of unprotected speech based on the unproven assumption that it has harmful effects.
The California law at issue in the case banned the sale or rental of “violent video games” to minors. As with all previous state and local laws designed to restrict minors’ access to violent material in games—all struck down by federal courts—the definition of “violent” was vague and problematic. The California law referred to “killing, maiming, dismembering, or sexually assaulting an image of a human being,” if those acts are depicted in a way that “appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” The definition was borrowed from obscenity law, which uses the terms “patently offensive,” community standards, and “serious value” to delineate what kinds of sexual material lack constitutional protection for both minors and adults. California’s argument in support of the law was that if sexual material that the adult community considers “patently offensive” and without serious value for minors can be restricted, why not violent material as well?
Scalia was having none of it. Reiterating long-standing First Amendment principles, he said that, outside certain specific categories like incitement or obscenity, “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Minors as well as adults have free-speech rights: “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”
Indeed, said Scalia, there is a long history of blood and gore in literature for adults and minors alike, from Homer’s Odyssey to Grimm’s fairy tales, where the wicked queen in Snow White “is made to dance in red hot slippers till she fell dead on the floor,” “Cinderella’s evil stepsisters have their eyes pecked out by doves,” and “Hansel and Gretel kill their captor by baking her in an oven.”
The newest technology is always the one to raise the most concerns, and in this respect, as Scalia observed, censorship of video games has followed a path pioneered by censorship, at different times in our history, of dime novels, movies, comic books, and television. Responding to Justice Samuel Alito’s argument in a concurring opinion that video games can be censored because they are different from other media, Scalia said: “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”—that is, the government must show that there is a compelling need to suppress them, and that there is no way to do so that is less restrictive of First Amendment rights.
This California, and its supporters in the highly contested field of behavioral psychology, conspicuously failed to do. The state’s attorneys acknowledged that they could not “show a direct causal link between violent video games and harm to minors.” Instead, they argued for a standard more lenient than strict scrutiny, under which studies by Dr. Craig Anderson “and a few other research psychologists” that “purport to show a connection between exposure to violent video games and harmful effects on children” would be sufficient. “These studies have been rejected by every court to consider them, and with good reason,” Scalia said: “They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology. … They show at best some correlation between exposure 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.”
The free-speech groups and media scholars who worked on this case can justifiably take pride in this recognition by the Supreme majority that the claimed social-science showing of harmful effects from violent video games is not just deeply flawed, but meaningless. But that pride and exhilaration must be balanced against the sobering fact that four justices, for different reasons, would allow exactly the new exception to the First Amendment that Scalia and the majority rejected: censorship of a potentially sweeping category of violent content.
The Dubious Concurrence
Justice Samuel Alito, joined by Chief Justice John Roberts, joined in the Court’s judgment because he thought the California law was too vague—it did not “give people of ordinary intelligence fair notice of what is prohibited”—but he encouraged further efforts at censorship. Alito noted with approval California’s “pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors.” Alito contested the Court majority’s assertion that video games are no different in “kind” from other entertainment; instead, he said, “there are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.” Based on such suspected differences, Alito thought, government should be able to experiment with restrictions: it only needed to write a law that “targeted a narrower class of graphic depictions” and did not rely on such vague terms as “deviant” and “morbid.”
Like many proponents of video game censorship laws, Alito gave a detailed and emotional description of some of the appalling imagery found in the elaborate fantasy worlds created by the games. “Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.” Moreover, “there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in ‘ethnic cleansing’ and can choose to gun down African-Americans, Latinos, or Jews.”
Alito acknowledged that all this mayhem does not necessarily make game players into torturers and criminals, any more than Dostoevsky’s Crime and Punishment makes its readers into murderers. Like other art or entertainment, sadistic and misogynistic fantasy is likely to have effects as varied as the personalities of the people who consume it. But the major problem with Alito’s highly charged opinion is his failure to connect its two parts. He goes into considerable detail about why the California law is hopelessly vague, but he does not address the problem inherent in censorship laws: how to write one that is not vague, or overbroad, but that narrowly and precisely targets a category of speech that is known to cause tangible harm.
Especially when it comes to violence, which is so prevalent in art, entertainment, and news reports, as it is in human life, the problem of drafting an acceptably precise and narrow censorship law is daunting, if not insurmountable. Instead of encouraging and justifying such efforts, Alito might better have focused his concerns about the possibly harmful effects on some people of violent entertainment toward affirmative solutions such as media literacy education. (See, e.g., Media Literacy: An Alternative to Censorship.)
The Sobering Dissents
Justice Clarence Thomas wrote a dissent based on his historical examination of Puritan America’s patriarchal family structure and his conclusion that the drafters of the First Amendment did not think it covered minors. It is a bizarre excursion into colonial and 18th century history, and unlikely to attract additional adherents. But Justice Stepphen Breyer’s dissent was considerably more troubling from the perspective of framing intelligent, non-censorial approaches to concerns about hyper-violent entertainment.
Breyer thought the California law passed First Amendment strict scrutiny because it served the state’s “compelling interest” in child protection: “extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.” For this proposition, he cited the very studies that Scalia and the four other justices in the majority—and many lower courts as well—had concluded were too ambiguous and flawed to be of any probative value.
Breyer did make one good rhetorical point. In both framing and defending its video game ban, California relied on the Supreme Court’s 1968 decision in Ginsberg v. New York, upholding a law that used a watered-down version of the Court’s definition of constitutionally unprotected obscenity to criminalize the distribution to minors of, essentially, soft-core pornography. But, Breyer asked, “what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
Breyer is right: it makes no sense, but the answer is not to ban the sale of the nonsexual violent game; the answer is to get rid of the obsolete and badly reasoned Ginsberg opinion. Whether or not the woman is topless, there are better ways to teach 13 year-old boys to be nonviolent and nonsexist than to make taboos out of violent fantasy games or Playboy centerfolds.
Justice Scalia closed his majority opinion by acknowledging societal and parental concerns about violent entertainment. California’s law, he said, was “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.” Hopefully, policymakers can now begin seriously to address those concerns in ways that do not include the drafting of ineffective, inevitably vague, and wrongheaded censorship laws.
*This article previously appeared on the Free Expression Policy Project, which existed from 2000-2017.