The Supreme Court’s 7-2 Decision on Video Games as Free Speech Masks a 5-4 Split


The Supreme Court today released its opinion regarding California’s attempt to ban the sale of so-called violent video games to those under 18. My company, Vindicia, filed an amicus brief in the case, Brown v. Entertainment Merchant’s Association, to make sure the Court was aware of the ramifications of the California law in the digital gaming world.

The decision is being widely reported as 7-2, which is true enough on the merits of this law. But looking closer, the decision is really 5-4 when it comes to the question of whether the First Amendment categorically protects the sale of video games to minors.

As I noted in a blog post after attending oral arguments in the case, Justice Alito and Chief Justice Roberts both seemed willing to allow states an ability to restrict the sale of violent video games. The Chief Justice seemed to miss the point that Postal 2, the game in question in the case, appears designed specifically to make white middle-aged conservative fathers like him angry. Justice Alito’s concurrence, with which the Chief agreed (bringing the two additional votes in the 7-2 vote), argues that some other law that better defines “violent” could pass constitutional muster.

Justice Thomas wrote a dissent in which he continues to take the position that kids really don’t have any free speech rights as an originalist matter. The flip side being that game creators have no right to sell to them if they’re under 18 (and as an original matter, probably under 21). Justice Scalia rightly points out in the majority opinion that Justice Thomas’s theory may support a system where parents could put their kids on a state-wide “do not sell video games to” list, but Scalia asserted that game makers’ free speech rights are violated when all kids are banned from buying their games.

Justice Breyer continues simply to believe that everything is a balancing test, regardless of the fundamental enumerated right in question, and that therefore judges should be allowed to use political arguments about what is best for society to balance laws against their harms. I’m reminded of Justice Scalia in another recent opinion replying to an almost identical Breyer argument with, “the very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

Today’s decision is good news in that the Supreme Court has found that states attempting to severely restrict the sales of video games have been going about it using unconstitutional methods. What’s still frightening is that we appear to be only one vote away from a state finding a way to restrict sales of video games to minors. Luckily, most of the methods that legislatures who really just don’t like video games would want to use would fail other constitutional tests. However, the “do not sell” list concept combined with the existing rating system does leave open a path for legislation that may not burden video game makers much. (That concept, however, faces the difficulty of the changes the digital revolution is bringing to the game industry’s business models, as we outlined in our Amicus brief.)

For adults, this opinion reaffirms something many of us knew. The fact that some people don’t like the content of video games is no basis for curtailing or choking them off at what many consider to be the beginning of a revolution in creativity, realism, and storytelling.

Gene Hoffman, Jr., is chairman and CEO of Vindicia, which provides strategic online billing solutions to merchants selling digital content, including online game publishers such as Activision Blizzard and Atari/Cryptic. Follow @hoffmang

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One response to “The Supreme Court’s 7-2 Decision on Video Games as Free Speech Masks a 5-4 Split”

  1. Luke Easter says:

    Supreme Court Violent Video Games Ruling:

    18 and under, someone is appointed to manage the wealth,
    As the law has deemed they are not able to do it their self,
    Not viewing detrimental violence contained in a video game,
    Is, “Unconstitutional” & that Supreme Court ruling is insane.

    These black robed legalistic, “morons” decided to do away,
    With a California law regulating what children watch, they say,
    “Restrict the ideas to which children may be exposed” violates,
    Their 1st amendment Rights to watch video games that annihilates.

    Anything that gets in the way of seedy characters who practice hate,
    Not limited to but including property destruction, murder and rape,
    isn’t it strange how minors have not faculties to manage their funds?
    However, there’s enough mental capacity to engage in play with guns.

    But, they are not real firearms, it’s just fantasy and only on a screen,
    Okay, how many accidental deaths have occurred via wrestling seen?
    Because “graphic violence” which would be otherwise under exposed,
    Is now readily available to corrupt our children and that’s how it grows.

    “Monkey see monkey do” U.S. Supreme Court which monkey are you?
    Are we now to allow kids to watch and anticipate in pornography too?
    Is it not bad enough that some parents actually buy and bring them home,
    Mom & pop are no longer necessary now Dick & Jane rent on their own.

    So, exactly how does, “free speech” equate to leisurely to watching crap?
    Are there not laws to ban the sale of hard core material in, “gangsta rap?”
    “No doubt a state possesses legitimate power to protect children from harm,”
    Where I am left wondering if an 18 billion industry helped silence the alarm?

    That quote by Justice Scalia is humorous, he points out violence in fairy tales,
    Hansel & Gretel or Cinderella did not induce the violence that leads to jail,
    Many of our youth participated in gun battles, sexual assault & stealing cars,
    As I very seriously doubt if there are any ,”cartoons” being discussed in bars.

    Nor is there any training of birds to pluck adversaries eyes by killer doves,
    But there is an acute awareness to not leave fingerprints by wearing gloves,
    When was the last time you heard of dancing in red hot shoes till you’re dead?
    I’ll be a monkey’s uncle if an over is used for anything other than baking bread.

    Thomas & Breyer agreed the 7-2 majority is reading something that isn’t there,
    Sad but true as state laws have to step in where parents are shown not to care,
    Scalia added, “certainly the books given children contain no shortage of gore,”
    It begs the question: so why give them access to videos that contain even more?