Supreme Court: ‘Video Games Qualify for First Amendment Protection’

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In a 7-2 decision with an opinion written by Justice Antonin Scalia, the Supreme Court effectively declared on Monday (PDF file) that video games can be afforded the same constitutional protections as visual art, film, music and other forms of expression.

The case that went before the court, Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association), strikes down California Civil Code 1746-1746.5, which tried to make the sale or rental of mature-rated video games to underage consumers an illegal offense punishable by fine.

Five years ago, former California governor Arnold Schwarzenegger signed into law a bill prohibiting the sale or rental of games that portray “killing, maiming, dismembering or sexually assaulting an image of a human being” to people younger than 18 years old. However, a lower court’s 2007 decision found the law — written by state senator Leland Yee, an assemblyman when he drafted it — to be unconstitutional. That turn of events led California to petition the Supreme Court, which heard arguments last November.

When Brown v. EMA went to the highest court in the land, commentators speculated about whether a more conservative decision could lead to a chilling effect on creativity in the video-game medium.

Burt Neuborne, the Inez Milholland Professor of Civil Liberties at NYU Law School, says,  “Of course, this kind of content wouldn’t have just gone away. Reversing the decision and reinstating the law would probably have just created a black-market distribution system, so the court decided that we’re better off supporting the First Amendment.”

(MORE: Violent-Video-Game Law to Get Tested in Supreme Court)

Throughout the text of the decision, the court found that the California law was too broad as written and couldn’t satisfy the “strict scrutiny” legal principle. It also held that video games, though different in form, still communicate ideas as other media do:

Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through  many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).

The court appeared to bat away the worst fears — about whether games engender violent behavior — which had spurred Yee’s legislation:

Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.

Neuborne observes that “the opinion is consistent with this court’s vision of the First Amendment.” He continues, “This is a Supreme Court with a First Amendment bit between its teeth, and these Justices have viewed the Amendment as a deregulatory device to take government out of as many things as they can.”

Despite numerous social-science studies, “it’s impossible to prove the negative effect of video games on kids,” he says, “and in the absence of proof, the [protection of] free speech wins.”

Neuborne elaborates that “we’ve been through this game before with obscenity cases, and we’ll see what kind of culture emerges when we have a totally open society. I don’t know if everyone else will be able to, but the video-game industry can sleep better tonight.”

(MORE: AIAS President Emeritus Joseph Olin on Video Games’ Supreme Court Case)

Footnote 4 of the decision might be the most colorful, illustrative example of the thinking behind the Brown v. EMA opinion. In it, Scalia links the ruling to the landmark 1948 Winters v. New York decision, writing:

Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not  constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy … Even if we can see in them “nothing of any possible value to society … they are as much entitled to the protection of free speech as the best of literature.”

It’s interesting that Scalia invokes Mortal Kombat as an example. (Think he knows it was banned in Australia?)

Nevertheless, the decision means that content in video games is free to be whatever it wants and that the systems in place do a sufficient job of keeping questionable material out of the hands of those too young to see or play it. Whether you prefer Duke Nukem Forever over Portal 2, you’ll still be able to get either game just as you did in the past.

Just get your parents’ permission, if you need it.

MORE: Games Rated ‘Mature’ Are Made Less, Bought More

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