Grand Theft Auto: First Amendment Edition

The Supreme Court wrapped up its term on Monday with its usual batch of big-time end of the season decisions. Those included a pair of cases that touched on very different aspects of the First Amendment. One, which I address in this post, was a slam dunk that I’m surprised took as long to come out as it did and wasn’t unanimous. The other, which I’ll take up next, is a bit of a head scratcher, even if the end result falls in line with my general stance on the underlying issue.

The first, Brown v. Entertainment Merchants Association, is the straightforward one. It involved a California law (signed by Herr Gropenfuher – Brown became the named party when he assumed office) that prohibited the sale or rental of "violent video games," as defined by the statute, to minors. Retailers and game makers sued, arguing that the prohibition violated the First Amendment. The State conceded that video games were entitled to First Amendment protection, which was a wise concession. As Justice Scalia writes for the Court:

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.

Once that concession was made, the case was essentially over. Like the federal government in the Stevens case last term, which dealt with so-called "crush" videos, California tried to argue that violent video games, due to their nature, fell outside of First Amendment protection, even if the First Amendment protected video games in general. In other words, it tried to turn violence into something like obscenity. As in Stevens, however, the Court rejected the attempt to create another exemption beyond those recognized at the time the First Amendment was ratified. So, the Court applies strict scrutiny and, as is most often the case, the state loses in that analysis. Along the way, Scalia notes how violent video games corrupting our youth is just the latest in a line of moral panics dating back to the rise of dime novels (and probably before) and drills a dissenting Justice Thomas for concluding that there is no First Amendment protection for speech to minors that doesn’t go through a parent/guardian first.

Having said that, Justice Breyer does make a good meta point in his dissent:

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. [Other precedent] makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman – bound, gagged, tortured, and killed – is also topless?

The answer, of course, for Scalia goes back to what was considered to be protected by the First Amendment when it was enacted in the late 18th Century. Obscenity, however defined, doesn’t fit the bill. From a logical standpoint, however, it’s hard to see why that should continue to be so. I take Breyer’s point, but turn it around – it doesn’t support the California law, rather it’s an argument for doing away with the obscenity exception to the First Amendment. More broadly, the disparity points to American society’s warped perception that sex is bad, but violence is absolutely fine.

So the Court got that one right. Now, on to the other decision, which is much less convincing . . .