Video Games are Protected Speech

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Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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58 Responses

  1. Avatar Zach says:

    “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

    • Avatar Patrick in reply to Zach says:

      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

  2. Avatar Patrick says:

    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

    • Avatar tom van dyke in reply to Patrick says:

      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

      • Avatar Chris in reply to tom van dyke says:

        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

        • Avatar tom van dyke in reply to Chris says:

          Perhaps, but the actual point has eluded you again, Chris, or you it. But thanks for the fan mail.Report

          • Avatar Chris in reply to tom van dyke says:

            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

            • Avatar tom van dyke in reply to Chris says:

              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

  3. 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

  4. Avatar Burt Likko says:

    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

  5. Avatar RTod says:

    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

    • Avatar Burt Likko in reply to RTod says:

      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

      • Avatar RTod in reply to Burt Likko says:

        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

    • Avatar tom van dyke in reply to RTod says:

      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

      • Avatar RTod in reply to tom van dyke says:

        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

        • Avatar tom van dyke in reply to RTod says:

          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

    • Avatar Murali in reply to RTod says:

      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

      • Avatar Rufus F. in reply to Murali says:

        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

      • Avatar RTod in reply to Murali says:

        Where are you fro, Murali?Report

        • Avatar Murali in reply to RTod says:

          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

      • Avatar tom van dyke in reply to Murali says:

        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

    • Avatar Christopher Carr in reply to RTod says:

      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

      • Avatar RTod in reply to Christopher Carr says:

        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

      • 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

            • Avatar RTod in reply to Rufus F. says:

              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

              • Avatar Rufus F. in reply to RTod says:

                The dichotomy between outwardly brash about sex and inwardly deep puritanism is definitely what makes Maxim Magazine so bewildering to me.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

        • Avatar Murali in reply to Rufus F. says:

          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

    • Avatar Mike Schilling in reply to RTod says:

      This is news? We see thousands of murders on TV every year without a comment, and freak out over a woman’s breast.Report

  6. 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

  7. Avatar Katherine says:

    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

    • Avatar Jesse Ewiak in reply to Katherine says:

      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

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