John Landis said, "R is when you bare a woman's breast, PG is when you cut it off." That is apparently now also the law of the land regarding video games, according to the Supreme Court's June 27th decision (PDF) overturning a California law that banned sales of violent video games to minors. I'm glad the Supreme Court struck down the law, but reading over the decision, I had the odd feeling that even though I agreed with the majority's conclusion, the actual arguments made by the dissenters made more sense, primarily because of the hypocrisy of the majority in treating sex as more taboo than violence.
The majority opinion, written by Scalia, has already been widely quoted as a ringing defense of free speech:
"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..."
But Scalia continues to believe that the government does have the right to ban the sale of nudity and sexuality to minors (as decided in the Supreme Court's 1968 Ginsberg v. New York decision), just not violence. So he kept qualifying statements like the one above by adding "except for pornography", like a judicial version of the fortune cookie "in bed" game:
"[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content... There are of course exceptions. These limited areas, such as obscenity... represent well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."
"Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."
So he's continuing the Supreme Court's tradition of carving out of a First Amendment exception for sex, but won't make one for gratuitous violence. I would be against banning either type of content, but if I were forced to ban one of the two, I would definitely pick violence. Wouldn't you?
As Steven Breyer wrote in his dissent:
"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 13-year-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?"
Well, he's right, isn't he? Except he misses the point that perhaps the remedy is not to ban violent video games, but to overturn the precedent that photos of topless women are harmful.
Alito seemed to agree with Breyer, when he wrote in a decision joined by Roberts:
"Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy... The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women."
(Alito was technically not dissenting, because he agreed that the current law was impermissibly vague, but filed a separate opinion because he was at pains to emphasize that he thought some future law against violent video games might be constitutional.) The implication seems clear: "If we can ban some things for minors — like pornography — then good God, can't we ban this stuff too?"
Scalia, in his majority opinion, responds to Alito's description of game violence: "Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression." But this is just hypocritical — because Scalia, throughout his own decision, kept deferring to the Ginsberg Supreme Court ruling, which said that the government could ban porn sales to minors if it depicted sex acts in way that the "average person" would consider "patently offensive with respect to what is suitable for minors" (along with some other criteria). In other words, if it causes disgust.
Breyer and Alito also made similar arguments to each other on another reasonable-sounding point — that industry self-regulation might not last long, now that the law has been struck down. As Alito wrote:
"The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7-10, a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired — or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished."
"And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today's broad ruling reduces the industry's incentive to police itself."
This sounds more realistic than Scalia's recitation of the video game industry party line:
"The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games... This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home."
What do you want to bet that Breyer and Alito are right, and enforcement of the rating system will decline now?
Compare this with another case, when Communications Decency Act of 1996 (essentially banning the "seven dirty words" on the Internet) was struck down in 1997 at least in part because a "less restrictive means" existed for censoring content in the home — parental blocking software. I didn't like blocking software much, but as a statement of fact, it existed, and was a less restrictive means than the law. The crucial difference there was that parents who used blocking software, weren't using it in response to a government threat of legislation, they were using it because they wanted to, and didn't stop using it after the law was struck down. There's no reason to think the same is true for industry self-applied video game ratings.
Finally, Breyer (but not Alito) rejected the argument that the California law should be struck down for vagueness, arguing that it was no more vague than laws against selling pornography minors, which the court had upheld:
"Comparing the language of California's statute (set forth supra, at 1-2) with the language of New York's statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words "kill," "maim," and "dismember" any more difficult to understand than the word "nudity?" ... California only departed from the Miller formulation [the Supreme Court case that defined obscenity] in two significant respects: It substituted the word "deviant" for the words "prurient" and "shameful," and it three times added the words "for minors." The word "deviant" differs from "prurient" and "shameful," but it would seem no less suited to defining and narrowing the reach of the statute."
Well, I think he's right. They're all just words, and they don't have crystal clear boundaries, but you pretty much know what they mean, and there's no reason why one group of words is more vague than the other. (In fact, in a 2008 article I argued that you could measure scientifically the vagueness of a law — just show the law to different test subjects, along with some made-up scenarios, and ask whether those scenarios violated the law or not. I'm quite confident that if you applied that test to these two different laws, you would measure about the same level of "vagueness".)
Again, I don't accept the justices' premise that the government has any business banning the sale of either sexual or violent content. But if you're going to grant the premise that they can and should, then Alito and/or Breyer seem to have made better arguments than the majority on at least those three points: That violence probably deserves less constitutional protection than sex, that the industry isn't likely to keep regulating itself if they no longer think they have to, and there's no reason that "kill" and "maim" are any more vague than "nudity".
(By the way, when I say the "dissenters sounded more reasonable", I am not including Clarence Thomas, whose entire solo dissent was devoted to research showing that the Founding Fathers did not believe people under 18 had First Amendment rights at all. If Clarence Thomas thought really hard, could he think of any other category of people who were denied full civil rights in the 1700s, and hence why we wouldn't want to apply that standard today?)
Fortunately, the majority did get the most important point right, which is that studies do not show a causal relationship between video game playing and real-life acts of violence. As Scalia wrote:
"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. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."
Unfortunately, Scalia lacked the nerve to say that this point should have been the only point that mattered, in a society where freedom is the default unless there's a good reason to the contrary. Because the logical consequence of that, would have been that since the "evidence" for the harmful effects of pornography is even weaker, then the government has no business banning that, either.
The problem constraining all nine justices is that they felt bound by the prior Ginsberg ruling making it permissible to ban sales of pornography to minors, so their options were limited to (a) striking down the video game law while ignoring the hypocrisy of continuing to ban pornography, or (b) pointing out that violent video games are probably at least as distasteful. This ignores the possibility that they could have just (c) overturned their prior ruling, as they have done many times before.
If I were a justice writing for the majority, my whole opinion would be:
Well, we can only make an exception to the First Amendment if there's solid evidence of real harm, and there is no scientifically valid evidence of harm here, so the law violates the First Amendment and is struck down. Oh, and that goes for Ginsberg too, next time it comes up. How much did you guys pay for law school again?
Unfortunately, Obama has said that he's looking for Supreme Court candidates that display "empathy", and what I said would probably hurt the other justices' feelings, so don't hold your breath for my being nominated.