Supreme Court Responds to First Amendment’s Call of Duty: Overturns California Ban of Violent Video Games to Minors

In a 7-2 vote, the Supreme Court overturned California’s law banning the sale or rental of violent video games to minors and imposing a labeling requirement. The Court’s opinion, written by Justice Scalia, found that video games deserve the same protection as books, movies, and plays because they communicate ideas and social messages. Scalia’s opinion cited the many ways in which our culture has incorporated violence into art. He noted that the classic books we read to our children contain “no shortage of gore.” Cinderella’s evil stepsisters had their eyes pecked out by birds and “in the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface.” He continued: “[R]eading 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.” The Court stated that California’s effort to ban video games is the “latest episode in a long series of failed attempts to censor violent entertainment for minors.” (There is, of course, a long history of restricting the access of minors to R-rated films, but that is a voluntary restriction imposed by the motion picture industry and theater owners rather than a statutory requirement.)

Although the Court agreed that California’s ban sought to address a legitimate and serious social problem, the Court found evidence lacking to prove that video games cause violence in children. Justice Scalia noted, that even taking California’s evidence for granted, the negative effect of video games on children’s feeling of aggression was indistinguishable from the effect produced by other media, such as cartoons. Yet, Justice Scalia continued, California has “declined to restrict Saturday morning cartoons.”

However, in a concurrence, Justice Alito, joined by Chief Justice Roberts, signaled that he remains open to appropriately limited laws that restrict the sale of video games to children. Justice Alito asserted that vagueness was the law’s primary defect because it did not clearly define the meaning of violence. He believed, however, that the Court was “far too quick to dismiss the possibility that the experience of playing video games…may be different from anything we have seen before.” The Justice feared that the future of video game technology, such as allowing a child to experience how it feels to kill a person, might produce effects on children that are quite different from reading a book. He noted that he would not “squelch the legislative efforts that deal with this developing social problem”, but would consider the constitutionality of better crafted laws as they are presented to the Court.

Justices Thomas and Breyer both dissented in the case. Justice Thomas argued that the First Amendment does not guarantee a right to speak to children without first going through their parents. He stated that the Court’s decision undermines parents’ absolute authority “to direct the proper development of their children.” Justice Breyer, on the other hand, believed that the California ban was constitutional because it “impose[d] no more than a modest restriction on expression.” He noted that all the ban “prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of children.”

The Court this term has been very friendly to the First Amendment in commercial speech cases (see here). After unsuccessfully trying itself to regulate commercials during Saturday morning cartoons, the FTC has largely encouraged responsible industry practices through self-regulation rather than rulemaking. The current FTC has focused on providing very specific guidance for such self-regulatory efforts including marketing food to children. See here and here. The Court’s decision reinforces children’s rights to receive information or purchase products of their choosing. Unless rooted in one of the core categories of unprotected speech, such as obscenity or incitement, rulemaking or legislation that bans or restricts advertising or the sale of products to children will likely face significant hurdles when challenged unless those supporting the restraint can present compelling evidence of the purported ill-effects.

Full Disclosure: Arnold & Porter LLP filed an amicus curiae brief on behalf of the US Chamber of Commerce in support of those challenging the California law, arguing that businesses face a serious threat if the government may impose content-based restrictions of speech without satisfying the stringent conditions of constitutional strict scrutiny.

- Randy Shaheen, Chris Rhee, and Quin Landon