Posted On: October 15, 2011 by Karl Olson

Supreme Court Bludgeons California Video-Game Law

Is Mortal Kombat the highest form of free speech?

Maybe not. But it is protected by the First Amendment, according to a majority of the U. S. Supreme Court.

The Supreme Court's ruling on June 27 in Brown v. Entertainment Merchants Association struck down a California law restricting the sale or rental of violent video games to minors. It makes for interesting reading, and it produced several different opinions. Justice Antonin Scalia -- joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan -- delivered a full-throated defense of violent video games, holding, "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." He compared violent video games to Grimm's Fairy Tales, where the wicked queen, as punishment for trying to poison Snow White, "fell dead on the floor," and to Cinderella, where her evil stepsisters "have their eyes pecked out by doves."

The California law was dead on arrival, the Court said, because the state "acknowledges that it cannot show a direct causal link between violent video games and harm to minors."

Justice Samuel Alito and Chief Justice John Roberts weren't so sure. Alito wrote, "In the view of the Court, all those concerned about the effects of violent video games -- federal and state legislators, educators, social scientists, and parents -- are unduly fearful, for violent video games really present no serious problem. 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. 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."

Alito said, "Today's most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage." Alito and Roberts nevertheless agreed that the California law should be struck down, but only because the law was too vague.

Justice Clarence Thomas went off in a different direction, saying that the Founding Fathers "could not possibly have understood 'the freedom of speech' to include an unqualified right to speak to minors" without going through the minors' parents or guardians, and maintaining that the First Amendment challenge should be rejected on that basis.

Justice Stephen Breyer, meanwhile, would have upheld the law on its merits. He said that all the law does is prevent a child or adolescent from buying, without a parent's assistance, "a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17." Breyer maintained that the law "imposes a restriction on speech that is modest at most."

This was a tough case, in my view. I have trouble accepting the notion that violent video games in which kids realistically simulate mass murder are no different from reading Cinderella or Grimm's Fairy Tales. As Justice Alito observed, "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." But at the same time, the law was correctly subjected to strict scrutiny, and the state was unable to show a "direct causal link between violent video games and harm to minors," as the majority held.

At the end of the day, the tie goes to the speaker, and as the majority held, because the state bears the risk of uncertainty, "ambiguous proof will not suffice." So parents who want to keep violent video games out of their kids' hands will have to take matters into their own hands, without the help of a well-intentioned -- but unconstitutional -- state law.