Sponsored By

Supreme Court Justice Antonin Scalia wrote the Court's official opinion on the failed California video game law. Gamasutra highlights the judge's arguments as to why video games are protected speech.

Kris Graft, Contributor

June 27, 2011

5 Min Read

In a landmark ruling on Monday, the U.S. Supreme Court voted 7-2 against a California video game law that sought to place government restrictions on the sale of violent video games to minors. Justice Antonin Scalia was one of the seven justices that voted against the law, and he delivered the court's opinion, vehemently rejecting the California law. Here are the highlights from Scalia's commentary, which is available in full as PDF: Video Games As Free Speech "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). That suffices to confer First Amendment protection." Depiction Of Violence vs. Actual Violence [Regarding a recent Supreme Court ruling saying that dogfighting videos are protected under the First Amendment.] "We held that [U.S. vs. Stevens] statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty -- though States have long had laws against committing it.... As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice." On Speech Directed Towards Children "[The Act] wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken.... . No doubt a State possesses legitimate power to protect children from harm... but that does not include a free-floating power to restrict the ideas to which children may be exposed. California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read - or read to them when they are younger - contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Danger Of The California Law "Justice Alito's [who also voted against the law] argument highlights the precise danger posed by the California Act: that the ideas expressed by speech -- whether it be violence, or gore, or racism -- and not its objective effects, may be the real reason for governmental proscription." Linking Video Game Violence With Effects On Children "California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors... The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children." "Wildly Underinclusive" "In his testimony in a similar lawsuit, Dr. Anderson admitted that the "effect sizes" of children's exposure to violent video games are "about the same" as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner... or when they play video games like Sonic the Hedgehog that are rated "E" (appropriate for all ages)... or even when they "vie[w] a picture of a gun". Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it." What Parents "Ought To Want" "Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation's effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want." The Supreme Court's Task In Ruling "California's effort to regulate violent video games is 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 - concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a 'well-defined and narrowly limited clas[s] of speech...'" Scalia's Conclusion "California's legislation straddles the fence between (1) addressing a serious social problem and (2) helping con- cerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive... As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny."

About the Author(s)

Kris Graft


Kris Graft is publisher at Game Developer.

Daily news, dev blogs, and stories from Game Developer straight to your inbox

You May Also Like