States can no longer ban the sale or rental of violent video games to minors, thanks to a decision by the Supreme Court this morning. In a victory for civil libertarians, the court upheld a 9th Circuit decision on a 7-2 vote that struck down a California law on the bases of the First and Fourteenth Amendments:
The high court agreed Monday with a federal court’s decision to throw out California’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento said the law violated minors’ rights under the First and Fourteenth amendments.
The law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction.
The decision provides an odd alignment among the justices. The two dissenters in this case were Clarence Thomas and Stephen Breyer, not normally seen on the same side of split decisions on the Supreme Court. Antonin Scalia filed the opinion for the majority, and faulted California for trying to treat violence as obscenity:
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. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” Miller, supra, at 24. See also Cohen v. California, 403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.
Stevens was not the first time we have encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity. In Winters, we considered a New York criminal statute “forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person,” 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. “[T]here can be no more precise test of written indecency or obscenity,” it said, “than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. ” Id., at 514 (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest-balancing that we rejected in Stevens. Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U. S., at 517–519, made clear that violence is not part of the obscenity that the Constitution permits to be regulated. The speech reached by the statute contained “no indecency or obscenity in any sense heretofore known to the law.” Id., at 519.
This seems especially explosive:
California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it 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. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”
I have two thoughts about this part of the ruling. The Obama administration wants to go after companies that advertise to children, targeting such longstanding marketing icons as Tony the Tiger for Kellogg’s Frosted Flakes, for example. Now that the court has ruled that entertainment companies have the right to market directly to children for violent video games, it seems a natural question to ask whether the Obama administration would be abusing its power to interfere with Kelloggs and other food manufacturers from doing the same, even with nominal FCC jurisdiction on airwaves.
Thomas rejects the idea that the First Amendment applies at all, giving a detailed analysis of the evolution of thinking about children in a free society. He concludes that portion of his opinion with this observation:
In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment.
He also points out that we already do restrict certain activities of minors:
Moreover, there are many things minors today cannot do at all, whether they have parental consent or not. State laws set minimum ages for voting and jury duty. See Roper, supra, at 581–585 (Appendixes B and C to opinion of Court). In California (the State at issue here), minors cannot drive for hire or drive a school bus, Cal. Veh. Code Ann. §§12515, 12516 (West 2010), purchase tobacco, Cal. Penal Code Ann. §308(b) (West 2008), play bingo for money, §326.5(e), or execute a will, Cal. Probate Code Ann. §6220 (West 2009).
Minors younger than 17 years of age can’t watch an R-rated movie without a parent or guardian, either, although I believe that is an MPAA agreement with participating theaters and not law in any jurisdiction.
I agree with Thomas, but only to a point. The restriction of such materials should be the decision of the parent and not the state. Parents can and do have a great deal of influence and power to affect a ban, if they see fit to do so. Wal-Mart and other retailers already have restrictions on what kind of entertainment they’re willing to sell at all (not just to children) thanks to the economic power of parents. The California law was an attempt to insert the police into what should have been a private parental decision, a further regulation on business that turned retailers into the equivalent of bar owners, and for little public-safety purpose. Thomas, as always, has an interesting argument, but he’s on the wrong side of this question.
Update: The MPAA rating restriction applies to those under 17 not accompanied by a parent or guardian, a distinction I left out. Thanks to Madison Conservative in the comments for pointing it out. I fixed it in the text above.