Video Games are Protected Speech
In a 7-2 vote, the US Supreme Court ruled today that violent video games cannot be prevented from being sold/rented to minors.
The two were Breyer and Thomas (together again) arguing that we already know that we cannot sell, ahem, “Gentlemen’s Magazines” to minors and that isn’t a violation of their First Amendment rights, therefore restricting their access to violent video games is also not a violation of them.
The question of whether (and to what extent) Constitutional Rights apply to Minors is a fascinating one but the idea that video games are protected speech (much in the same way as burning a flag, I suppose) is one that fits in with established precedent, it seems to me.
“much in the same way as burning a flag, I suppose” — but not holding up a banner. The court’s been so schizo on 1st amendment issues the last few years (as it appears to this total amateur, anyway). I can’t see how it’s possible to reconcile a state’s ability to directly punish actual speech by a minor with a state’s inability to restrict video games and provide matching funds for political candidates.Report
The difference in the Bong Hits 4 Jesus case was that minors’ speech rights are much more restricted when they’re in school or participating in school activities.Report
The position you attribute to Breyer and Thomas is actually closest to that expressed by Alito in his concurrence in the judgment — he thought this particular California statute wasn’t drawn narrowly enough but suggested that it might be constitutional to restrict sales of violent video games to minors through a better drawn statute for the reason you outline above.
Breyer basically punted on the First Amendment question and deferred to the California legislature (seriously, a terrible opinion), and Thomas essentially said that minors have no First Amendment rights separate from their parents (or that people in general have no right to speak to minors without their parents’ permission) because at the time of the Founding parents basically owned their children for all intents and purposes.Report
An uncharitable restatement of Thomas’ opinion but accurate enough. I agree with it completely: the question of minors and their status is completely different than a society comprised only of adults. Most of our remaining social controversies revolve around the question of children.
That the Constitution abolishes all mores and manners, or that they must answer to social science, is the death of philosophy, aesthetics and culture, of the notion of ethos, if not society itself.
[Yes, it could be argued that the legal abolition of mores and manners is a “culture” in itself. Since we’re headed that way, I guess we’ll find out. Such a brave new world.]Report
I love that you start by saying that someone else’s restatement of Thomas’ opinion is uncharitable, and then procede to give the most uncharitable description of the opposition as possible. It’s perfect grumpy-old-fart silliness.Report
Perhaps, but the actual point has eluded you again, Chris, or you it. But thanks for the fan mail.Report
Tom, your point, as best I can tell, is the same one you’ve been making as long as you and I have been commenting in the same place, namely that the practical effect, if not the intended one, of secularism on the left is the abolishment of morality through law (or reinterpretation of the Constitution, or both), or to make it dependent on the findings of the social sciences. Neither of those things are true, but your failure to see that, or to even be capable of seeing that, is simply due to the fact that you can’t see other values/ethics/morals (even when they differ only slightly from yours) as values/ethics/morals: it is either your way, or no way. I call it grumpy-old-fart silliness because this is precisely what grumpy-old-farts say when they are no longer a part of the defining generation of a culture, and start to feel like their values are being undermined by the generation currently shaping things.Report
Not at all, Chris. One of my favorite speeches is Everett Dirksen’s “An Idea Whose Time Has Come.” It was that that ended up changing the law, not political force or judicial philosophical malpractice. [See the dicta in Casey.]
I refuse to sit in the box you’ve prepared for me.Report
I always find it interesting when Scalia and Thomas disagree.
Yanno, them both being “originalists” and thinking that there’s nothing interpretive about what they do.Report
Scalia famously said that the difference between him and a die-hard originalist (e.g. Thomas) is that “I am an originalist. I am not a nut.” This Thomas dissent is exactly what he had in mind when he said it.Report
Oh, reading the two opinions is clarifying. But it’s one of those “this label doesn’t mean the same thing to each of these two guys, and they’re supposed to be exemplars of the label” issues.Report
Given the difference between Scalia and Thomas on Gonzales v Raich, I’d rather have the nut.Report
Amen.Report
With that said, however, he’s positively nutzo when it comes to minors. It’s like he believes that the government, in loco parentis, ought to act like the strictest military school teacher ever.Report
Yes, Thomas is certainly not all upside, its more that Scalia appears to be all downside.Report
Haven’t read it yet; I’m stuck at the office waiting for a client with a late appointment. I’ll get to the case tonight.
Thomas and Breyer in dissent; Alito concurring with the majority. That’s an odd fragmentation.Report
I know this thread is probably intended for just the Constitutional Debate part of this issue, but as a parent… We collectively think it’s ok if my 12 year old playing GTA – where he can simulate the raping and killing of a prostitute – is protected, but it’s imperitive that we keep him from seeing a photograph of a woman’s hoo-hoo? Really?
The Europeans are right. We *are* sexually repressed.Report
Sounds like a worthy topic of discusion to me. What seems most important to me is ensuring that the child is able to distinguish between fantasy and reality. That goes for sex and violence alike.Report
Agreed, but agreed in a “but that’s not my point” kind of way.
I know what I wrote comes offf as a laugh line, but I am serious… If you have some kind of argument that says pretend rape and killing = good for kids/protected, pics of male or female anatomy = dangersous and must never be seen by kids/ban or restrict, either your argument is an insincere one stretched to the point of absurdity or you are one sick puppy.Report
Lenny Bruce’s argument about sex vs. violence, RTod. Well played.
“The argument is that a child will ape the actions of an actor. What he sees now in
his formative years, he may do as an adult, so we must be very careful what we let the
child see.
So, then, I would rather my child see a stag film than The Ten Commandments or King of Kings– because I don’t want my kids to kill Christ when he comes back. That’s what they see in those films — that violence. Well, let me just take your kids to a dirty
movie: “All right, kids, sit down now, this picture’s gonna start. It’s not likePsycho, with
a lot of four-letter words, like ‘kill’ and ‘maim’ and ‘hurt’ — but you’re gonna see this film
now and what you see will probably impress you for the rest of your lives, so we have to
be very careful what we show you. . . Oh, it’s a duty movie. A couple is coming in now. I
don’t know if it’s gonna be as good asPsycho where we have the stabbing in the shower
and the blood down the drain. . . Oh, the guy’s picking up the pillow. Now, he’ll probably
smother her with it, and that’ll be a good opening. Ah, the degenerate, he’s putting it
under her ass. Jesus, tsk tsk, I hate to show this crap to you kids. All right, now he’s
lifting up his hand, and he’ll probably strike her. No, he’s caressing her, and kissing her —
ah, this is disgusting! All right, he’s kissing her some more, and she’s saying something.
She’ll probably scream at him, ‘Get out of here!’ No, she’s saying, ‘I love you, I’m
coming.’ Kids, I’m sorry I showed you anything like this. God knows this will be on my
conscience the rest of my life — there’s a chance that you may do this whenyou grow up.
Well, just try to forget what you’ve seen. Just remember, what this couple did belongs
written on the walls of a men’s room. And, in fact, if you ever want to do it, do it in the
men’s room.”
Then again on the other hand, he continues:
I never did see one stag film where anybody got killed in the end. Or even slapped in the mouth.
Well, that’s GTA and worse. And of course, when reading the Bible, Little Alex wanted to be the centurion at the Crucifixion. Now there’s a video game. What fun.Report
Although, Tom, I think in my example it’s not even just sex vs violence. It’s sex in the form of simulated rape is ok for kids, but sex in the form of a Playboy centerfold or (god forbid) Janet Jackson’s nipple exposed for 2 seconds is dirty filth that children must never be exposed to for fear of their moral well being.
As a parent: fishin’ A, dude.Report
I hear you, RTod. The Janet Jackson nipple was about propriety, not scandal, not sex. Propriety is the word, term and concept I’m after here, as in mores and manners. There’s a time, place and context for everything and to blur it all—to obliterate it all!—is simply brutish.
Filth has nothing to do with it. In fact, Janet’s is a very fine nipple, all agree.
Sexual assault is filth, though, which is why I’m down with Justice Thomas on this. [Only heard the recap on NPR; dunno what Breyer said.]Report
We *are* sexually repressed.
No you’re not. You’re just hyper-violent.
From where I’m standing you’re all licentious. Consider that I’m a 26 year old virgin staying with my parents. And this is considered normal in my culture. (Meaning we’re more repressed than mormons in many ways)Report
I think the hyperviolence can be less than it seems from other countries. When I moved to Canada, the number one question I got- from very well-meaning Canadians- was, “What’s it like to see people get shot and killed in the streets?” The sad thing is I actually have seen that happen, but I have never met another American who’s seen that sort of violence. Its’ isolated.Report
Where are you fro, Murali?Report
I’m from Singapore which is already pretty sexually repressed. You know that your country is sexually repressed, when the border town which also serves as a sexual release valve is Islamic. Compared to the rest of the country, the Brahmin community is even more conservative with regards to sexuality than the rest of the country. Sex before marriage is taboo. If it gets out that you have done it, you better hope that the people who found out know how to keep secrets. Kissing her in public (even after you get married) is moderately scandolous. i.e. all the old ladies will gossip and they will say that the parents didnt bring up their children properly. Holding hands in public before you are married is mildly scandalous, but the more progressive elements think its kind of sweet once you’re married.
This of course has nothing to do with what movies we will or will not watch. Its ok as long as the sex all happens on the other side of the pacific.Report
You know that your country is sexually repressed, when the border town which also serves as a sexual release valve is Islamic.
For the win.Report
Mr. Murali, deep thx for your context and candidness here. It’s very difficult for Westerners to attempt to derive “universals,” since we know little of man except what we see on TV.
Not that it stops us from asserting universals…Report
We westerners never assert universals.Report
Its not that there are no universals, just that we should be extremely careful. Issues of prudery and licientiousness are just culturally relative. I dont think we can go beyond saying that if you value the opinion of a particular group, then you will abide by their standards.Report
Agreed.Report
Only Sith deal in absolutes.Report
Except that the Sith are evil, and evil is kind of an absolute.Report
In a faraway galaxy, ripe for disaster
Lived two Sith lords, apprentice and master
They were not afraid of Jedi
To kill them, they were always ready
They made their plans come rain or shine.
And the evilest one was Palpatine.Report
On far Naboo, in watery sinks
Lived a creature, Jar Jar Binks
Long of ear and short of wit
Turning all he touched to shit.
If you’s-a tinking he “so wood”
Try a Gungan, barbequed.Report
Who’s keeping him from seeing a photograph of a woman’s hoo-hoo? He can see A2M if he wants within twelve seconds on the Internet? America is the most sexually liberated nation on earth. I’ve spent a quarter of my life living in other countries, and the people who broadcast their sexuality more crassly than anyone else are almost all Americans.Report
My point is one of what the court allows minors to buy as it is “protected” as a fundamental right for a 10 year old (graphic simulated rape falling into this category) vs. what courts say the laws may prevent children from purchasing because after all we are a civilized society (playboy magazine falling into this category). As a parent I find whatever logic behind that perverse.
But to address your point, my child cannot purchase those things. I as his parent might choose to purchase internet access for my home or a subscription to cinemax and may or may not choose for my child to have access to those things. But he cannot.Report
I don’t think you’ll find too many people who strongly support those kinds of laws (at least among younger parents) because the culture that created and endorsed such laws is no longer the mainstream. Their existence is more likely due to the fact that it’s hard to get rid of laws here. Nevertheless I see your point!Report
I assume it’s something like this.Report
That’s a couple different things though: the Internet, the mass media, and public behavior. Whenever I return to the US, I notice immediately that Americans broadcast a lot of things in public because they’re generally louder. Sexuality is definitely one of them and, strangely enough, I even found the French to be more reserved about their sexuality. On the other hand, they’re fine with full frontal nudity on billboards and ads, while the US would probably balk at that. The internet, of course, does make a lot of our attempts at propriety hard if not impossible.Report
I agree (with your noting of finer distinctions and your characterization of European sexual mores). I would add non-sexual nudity to that list as well (It does exist.). Public baths are common in Japan, and in public baths there are of course a whole lot of naked people rubbing themselves, but of course this doesn’t have anything to do with sexuality. I couldn’t imagine ever listening to close friends or co-workers discuss where they shave or don’t shave or how the sex after their most recent date went; yet these are the kinds of conversations my kids overhear at American malls, and it all stems from this misguided idea that other cultures are more free sexually than we are because they feel comfortable bathing with strangers or have nude images in advertising.Report
One of the times I was doing research in Paris, it was summer and that year’s fashion for young women was this sort of diaphanous summer dress that was basically really see through and worn with or without underwear. I think there’s just much more comfort with displays of the body, but not necessarily with sex. Often television ads and posters in the subway would feature nudity in a really easygoing way. Of course, remember that there are centuries worth of naked statuary in basically every park in France. You probably just get used to bodies.Report
I once dated a woman from France who told me that Americans were outwardly brash about sex but inwardly a bit puritanical, and that people where she came from could never quite figure out this dichotomy.Report
The dichotomy between outwardly brash about sex and inwardly deep puritanism is definitely what makes Maxim Magazine so bewildering to me.Report
Can you elaborate on that?Report
Every time I’ve thumbed through it, Maxim struck me as being very ostentatiously “sexual”, while not actually being about sex as much as status and income level and a sort of narrow hetero-sexism in which women can be tricked into one-night stands but otherwise have no sexuality of their own. It just seemed really artificially narrow in a way that seems more fearful of sexuality than actual puritanism- I tend to think the same of most aspects of the hook-up culture. They strike me as really neurotic obsessive compulsive behaviors more than any sort of sexual liberation.Report
Good point. Maxim represents the straight-laced careerist culture more than any other. While reading your elaboration, I recalled that almost all of the interviews with swimsuit models involve lines along the… err… lines of: “I’m really just a homebody” or “I like spending time with my dog and curling up on the couch with a good book” – a sort of faux-wholesomeness coupled with clumsy innuendo from the publication (which obviously goes over the interviewee’s head) all creating the world you describe.Report
The internet, of course, does make a lot of our attempts at propriety hard if not impossible.
I assume you are referring to rule 34Report
“Propriety” is what you’d say or do in front of your mother or your daughter.Report
Or your sister, father, brother or son. Lets just leave it at family in general and chalk it up to cultural differences when it regards beliefs as to how far propriety extends.Report
This is news? We see thousands of murders on TV every year without a comment, and freak out over a woman’s breast.Report
Yeah, but it’s different when the supreme court says it. It’s like how I might KNOW I really should lose 20 lbs, but somehow when my doctor officially says it I feel really sad.Report
Whether video games are constitutionally protected speech and whether restrictions on sales to minors are unconstitutional are two independent questions, as can be seen with pornography (constitutionally protected, but restrictions on sales to minors are not unconstitutional).
Did this case address both questions, or was it already established that video games qualify for first amendment protection?Report
Check it out here: http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf
Here’s the first sentence of the second paragraph:
Held: The Act does not comport with the First Amendment.Report
My understanding is that pornography is not unquestionably protected by the 1st amendment. I believe there is still a doctrine that “obscene” speech is not protected. Whether everything we might call pornography counts, for the justices, as “obscene” or not is a different issue, of course.Report
So, what’s the legal argument for why it’s okay to restrict minors from renting R-rated movies, but not from buying M-rated video games?Report
It’s perfectly legal for a minor to rent an R-rated movie or buy a ticket to one. It’s the theatres/video stores choice to not allow children to buy/rent those movies. Same thing with video games. Wal-Mart and Target still won’t allow Lil’ Johnny to buy the newest GTA. But it’d be legal for him to buy it from Bob’s Video Game Store.Report
Ah, thanks.Report