Monday, June 27, 2011

Scalia on video games

The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948). 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.
-- Brown v. Entertainment Merchants Ass'n (Scalia, J.).

Scalia notes that minors' First Amendment rights have been recognized since 1975, and tweaks Thomas:
JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.
And Alito is the target of a couple of footnotes:
JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. 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, and restrictions upon them must survive strict scrutiny ....
And not just in footnotes:
JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence — “‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s 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.
Breyer (dissenting) also spent a lot of time studying video games, as Scalia notes:
JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record — and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong.
Maybe the best footnote is this:
One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.
... Via a Volokh commenter, we see that Thomas has written some of the craziest stuff ever to appear in a SCOTUS opinion: apparently, what laws a state can pass to regulate children, is a question to be decided by how the Puritans raised their kids.
Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55(1712) (“Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699).
Yes, folks, the First Amendment is best construed by reference to Cotton Mather.


  1. Scalia is adorable and awesome.

  2. One day out of four, anyway.

  3. Apparently, even taken on his own terms, Thomas can't tell the difference between a father and the state. Explains a lot, really.

  4. Apparently, even taken on his own terms, Thomas can't tell the difference between a father and the state.

    Yah, isn't that supposed to be Blue Team's problem, not Red's? I'm so confused about how I'm supposed to be destroying America.

  5. 1) So Scalia is now the mentor, instructor and Master Teacher of his peers? How DO these people keep their jobs with such scathing peer review of their work?

    2) I guess I missed that chapter in Parenting 101 about it being one of my primary responsibilties to "suppress their children's natural depravity". Or maybe my kids aren't natural...or maybe I'm a bad parent and didn't know it. Until now. Thanks a lot Anderson and especially certain members of the SCOTUS. And to think I thought Ms. Razor (and I) had done a good job. Since there is no appeal of this, I'm kinda screwed. Should I demand a refund of their allowance and start remedial training?


  6. Haven't read the Thomas opinion: does he account for the divergent parenting styles in different colonial regions, as described in Albion's Seed?

  7. Nah, the farthest South we get is Jefferson's directives on raising children; was ever a Founding Father's distance between talking the talk and walking the walk greater than T.J.'s?

    As usual, "America" turns out to mean "New England." Tho in more recent years, America has actually moved to Ohio, I think.

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