Wednesday, July 27, 2011

Supreme Court: Wrong on Violent Video Games for Minors

Selling violent video games to minors is protected free speech under the First Amendment.

Yes, selling games, in which players engage in such video conduct as decapitating girls, urinating on victims, and burning enemies alive, is free speech.

Absolutely no exaggeration. That's what the Court held.

Well, that's what happens with a mediocre Court. One that takes a principle (a misconceived principle at that) to its (il)logical extreme. A Court that is unable or unwilling to make distinctions.

The decision, in Brown v. Entertainment Merchants, issued a few weeks ago by the Supreme Court at the very end of its 2010-11 term (October 2010 Term), is as revealing as it is ridiculous. Let's take a look.

California enacted a law prohibiting the sale of violent video games to minors. "Violent" was defined in the California law as "killing, maiming, dismembering, or sexually assaulting" a human in the video game. The majority of the Justices held that the law violated free speech. Repeat: free speech. That's right. A law against selling violent video games to minors violates free speech!

Let's take the law's target one piece at a time: 
Violent Video Games,
To Minors.

That target--according to the Court's majority--is constitutionally protected, First Amendment, free speech.

Let's first critique the Court's decision in a nutshell: 
Selling-- no, that's not "speech" or, even more broadly, expression; 
Violent Video Games--no, that's not what the First Amendment, its letter or its spirit, is intended to protect; 
To Minors--no, that's very different than To Adults, and constitutional law allows different treatment in order to protect children.

In short, the Supreme Court's decision--holding that the California law is an unconstitutional abridgment of free speech--is dead wrong.

Let's take a somewhat closer look:
Selling is simply not speech. It is not even expressive activity--i.e., an activity that functions as speech because the actor intends his activity to "say" something, to express an idea or opinion. So, for example, wearing a black armband to protest a war, or waving an American flag to express patriotism. Activities such as these are close enough to actual speech that they are usually treated in constitutional law as free speech, or as something very nearly the same.

But selling? Exchanging a product or a service for money? That's speech?

Now, with a little effort--and a wink--it is possible to construe virtually anything as speech. So, the act of selling could be construed as speech about the product or service being sold. The act of selling marijuana could be construed as speech about smoking marijuana. The act of selling liquor to a minor could be construed as speech about minors drinking liquor. The act of selling an X-rated video to a minor could be construed as speech about minors watching sexually explicit videos.Yes, that's possible.

But that's hardly what "speech" means in the First Amendment. It's certainly not a textual, strict, or originalist interpretation of "freedom of speech"--regardless of what the self-proclaimed textual, strict, originalist interpreter, Justice Scalia, insisted in the majority opinion. It's not even part of the broader principles, purposes, and ideals underlying the First Amendment. It's simply not a reasonable, serious interpretation of speech.

To be sure, some selling may be closely tied to something else which does involve speech or expressive activity. Selling a political book or selling tickets to hear a political speech would fall into that category. But violent video games?

Violent Video Games are hardly speech within the meaning of the First Amendment, or within the meaning of any non-amorphous concept of speech. They are far removed from the broader principles, purposes, and ideals underlying  the protection of  "freedom of speech." Violent video games are hardly related to participating in the governance of a democracy. Selling, purchasing, or playing violent video games is hardly related to speaking or otherwise expressing ideas and opinions about government, politics, political officials, or about associated matters such as economics or law or sociology.

Indeed, selling, purchasing, or playing violent video games is far removed from speaking or expressing ideas and opinions about any subject matter that members of a free society must be free to speak about and otherwise express their ideas and opinions about--e.g., science, religion, philosophy, literature, art, culture, education, etc., etc., etc. In fact, selling, purchasing, or playing violent video games has little if anything to do with speech or expression that is vital to governance or life in a free society.

Unless, again, we construe any act to be speech or expression. So that selling, purchasing, or playing violent video games is construed to be the same as speech or expression about those games. So that selling, purchasing, or playing violent video games to minors is construed to be the same as speech or expression about minors playing violent video games.

Certainly, actual speech about violent video games and minors falls well within "freedom of speech." Expressive activity about the same (e.g., protesting stores that sell those games, and even burning those games in protest) would fall within "freedom of speech." But no reasonable, serious interpretation of that First Amendment guarantee encompasses selling, or purchasing, or playing a product such as violent video games.

[Justice Scalia--forever cute and clever--made the point that Grimm's Fairy Tales and Disney's Snow White also contained violence, and that selling them could certainly not be prohibited. Well, Hustler magazine and the Sistine Chapel both contain nudity. But any serious person understands that they are different. Beyond that, the California law explicitly exempted games that had any serious literary, artistic, political, or scientific value.]

For now, though, let's suspend any insistence on being serious. Let's engage in the silliness that selling, or purchasing, or playing a violent video game is free speech. Even with that, there's still the minor wrinkle of minors.

To minors is, in fact, a major difficulty with the Court's decision. Remember, the law in question prohibited the selling of violent video games only to minors. So even if we engage in the silliness that selling equals speech, and that all violent video games have some serious scientific, religious, philosophical, literary, artistic, cultural, educational, or other value underlying freedom of speech, there's still that minor matter that the law dealt with minors.

Like lots of perfectly valid laws, the law prohibiting the sale of violent video games to minors was intended to protect minors, to treat minors differently than adults. Such laws might well be invalid if they applied to adults. There might well be constitutional problems if the laws' restrictions were applied to adults. But not when applied to minors.

So, for example, laws prohibiting the sale of alcoholic beverages to minors. Prohibiting the sale of X-rated magazines to minors. Restrictions on gun sales to minors. Prohibiting admission to X-rated movies to minors. Restrictions on minors' (i.e., child) labor. Restrictions on driving by minors. Requirements of education, medical care, support, custody, etc., etc., etc., for minors. Prohibition of sexually explicit magazines, movies, performances, involving minors. And on and on and on.

All of those laws are valid. None of them are unconstitutional--let alone violations of free speech.

California passed the law prohibiting sales of violent video games to minors, not to adults. California thought it better for minors if their access to such videos were limited. Sales to and purchases by adults were entirely unaffected. Just like those laws limiting the sale of alcoholic beverages, X-rated magazines and videos, guns, medications, etc., etc., etc., to minors, but not to adults. Again, all valid. None unconstitutional. None violate free speech or any other related or unrelated constitutional guarantee.

Likewise, California's law against selling,  violent video games, to minors. It was valid. It was not unconstitutional, let alone an unconstitutional restriction on free speech. The Supreme Court got it wrong.