Tuesday, June 28, 2011

Violent Video Games: Present, Past, and Future

By Mike Dorf

The Supreme Court's decision in Brown v. EMA--invalidating California's law barring the sale of violent video games to minors absent parental consent--produced four opinions.  Here are a few thoughts on each.

1) Justice Scalia wrote the majority opinion for himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  So much for any notion that women would be more sympathetic to the regulation of violence than men would be.  All three female Justices voted the most free-speech libertarian position.  Tiny sample size? Of course.  I'm just saying . . . .  Meanwhile, Scalia and Kennedy breaking liberal here is not really a surprise. Each one (and especially Kennedy) has a pretty strong free speech libertarian streak.  This has been known since 1989, when they both joined the liberals to strike down the flag-burning law in Texas v. Johnson.  As for substance, the majority opinion makes considerable use of the Cato Institute brief, which pointed to prior instances of misplaced hysteria about media corrupting the youth--movies, comic books, television, music lyrics, etc.

2) Justice Alito, joined by CJ Roberts, concurred in the judgment on the ground that the California statute is unconstitutionally vague, but in many respects the opinion reads like a dissent. Alito's (de facto) dissent is not really surprising. The majority relies heavily on United States v. Stevens, from which Alito was the lone dissenter, but given that CJ Roberts wrote the majority in Stevens and wrote another strongly free speech opinion earlier this term in Snyder v. Phelps, one might wonder what he's doing with Alito here.  The answer, I think, is that CJ Roberts has a much narrower view of the free speech rights of minors than of adults, as evidenced by his opinion in Morse v. Frederick, the "bong hits 4 Jesus" case.

3) Speaking of the rights of minors, Justice Thomas goes way further to deny them.  Adopting an originalist methodology, he says that when the First Amendment was enacted, no one had a right to speak to minors, without the consent of the minors' parents. So he dissents.  Note that this theory would validate a law banning the sale of any and all books, magazines, etc., to minors, absent parental consent. Now, I'm not an originalist of any flavor, so maybe it's not my place to raise this objection, but it does strike me as highly peculiar to inquire into the 1791 understanding of the First Amendment in a case involving California rather than the federal government. States are bound by the First Amendment only because it is "incorporated" by the Fourteenth Amendment.  So I would think that Justice Thomas's inquiry into the scope of minors' rights circa 1791 only makes sense, even on originalist premises, if the public meaning of the Fourteenth Amendment as of 1868 was that it incorporated the Bill of Rights as the Bill of Rights was originally understood, rather than, say, incorporating what people in 1868 thought the Bill of Rights meant, or what people in 1868 thought that people in 1791 thought the Bill of Rights meant.

4) Justice Breyer also dissents. It's no real surprise that he broke conservative. With a long appendix of studies showing harmful effects of video games, Breyer's opinion is reminiscent of much-earlier opinions by Felix Frankfurter and others, who regarded free speech claims as no less susceptible to balancing against other interests than other sorts of claims.  In 1918, Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, in his view, "freedom of speech stands no different from freedom from vaccination." Breyer isn't quite there, but his willingness to defer to government expertise makes him probably the most statist Justice on the current Court, a title that belonged to CJ Rehnquist prior to his death.

Finally, I'm not surprised that no one gave much consideration to my suggestion that the case really presents a question about whether participatory virtual reality games are best understood as speech or as non-expressive conduct analogous to shooting a toy gun. The issue wasn't presented by the cert questions. Still, I take some comfort from the fact that Justice Alito did suggest that video games that simulate reality could be very different from the sorts of violent amusements about which people worried in the past. However, he made that point in the service of an argument that violent video games are regulable speech, not that they aren't speech at all. Oh well. We're not there yet, but it's gonna be the future soon.