by Robert Peters, General Counsel –Morality in Media

In a decision released yesterday, the U.S. Supreme Court in Brown v. Entertainment Merchants Assoc.invalidated a California law that would have prohibited the sale or rental of “violent video games” (as defined in the law) to minors. Justice Scalia, who delivered the opinion of the court (in which Justices Kennedy, Ginsburg, Sotomayor and Kagan joined), apparently thinks that not just the California law but any other law that Congress or a state might enact to restrict children’s access to violent entertainment would be unconstitutional. Justices Alito and Roberts voted with the majority but left the door open for a future law that would pass constitutional muster. Justices Thomas and Breyer dissented.

As in prior cases involving laws intended to protect children from pornography on cable TV [U.S. v. Playboy Entertainment Group, 529 U.S. 803 (2000)] and on the Internet [Ashcroft v. ACLU, 542 U.S. 656 (2004)], the Supreme Court has again ignored the warning enunciated in Columbia Broadcasting System v. Democratic National Comm., 412 U.S. 94, at 102-103 (1973):

“Once we get away from the bare words of the First Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.”

The bare words state that “Congress shall make no law…abridging the freedom of speech, or of the press” (italics added). But as Supreme Court Justice Brennan correctly stated in Roth v. United States, 354 U.S. 476, 483 (1957), “it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” If this were not so, then the following categories of speech, among others, would all enjoy unlimited First Amendment protection: Child pornography, Conspiracy to commit a crime, Contempt of court, Extortion, False advertising, Fraud, Harassment, Inciting a riot, Insubordination in the military, Libel, Obscenity, Perjury, Threats, and Treason. Public school teachers could also say anything they wanted, as could students.

The majority opinion in the violent video game case states correctly that there is no historical exception to the First Amendment for what might be described as obscene depictions of non-sexual violence. But to my knowledge, that is because such depictions weren’t widely disseminated during the early days of our nation to anyone, and certainly not to children. Had someone back then commercially disseminated obscene illustrations of violence to children as a form of entertainment, I think that someone would have been thrown in prison or placed in the stocks or worse. There would have no “First Amendment defense.”

I would add that photographs of children engaged in sexual conduct weren’t a problem back then either, but that, thankfully, didn’t stop the Supreme Court from holding in the 1984 New York v. Ferber case that “child pornography” is unprotected by the First Amendment.

Justice Scalia’s opinion (2011 U.S. LEXIS 4802, at p.6] cites Joseph Burstyn v. Wilson, 343 U.S. 495 (1952) for the proposition that “‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” But the Burstyn Court concluded that expression by means of motion pictures was included within the free speech and free press guaranty, even though films weren’t in existence when the First Amendment was enacted. Why should the Court be able to expand the meaning of the “freedom of speech, or of the press” clause to encompass new mediums, but not be able to expand exceptions to First Amendment protection, in existence when the Constitution was adopted, to address problems unknown by our nation’s founding fathers?

Justice Scalia’s opinion (2011 U.S. LEXIS 4802, at p.10) also cites Winters v. New York, 333 U.S. 507 (1948) for the proposition that the Supreme Court has previously “encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity.” But it would appear that the Winterscase is an example of the sort of modern day Supreme Court judicial activism that Justice Scalia has seemed to abhor. As Justice Frankfurt, dissenting in the Winters case, wrote:

By today’s decision the Court strikes down an enactment that has been part of the laws of New York for more than 60 years…and New York is but one of twenty States having such legislation. Four more States have statutes of like tenor…Most of this legislation is also more than 60 years old… (333 U.S. at 520-521)
….
This body of laws represents but one of the many attempts by legislatures to solve what is perhaps the most persistent, intractable, elusive, and demanding of all problems of society – the problem of crime, and, more particularly, of its prevention. By this decision the Court invalidates such legislation of almost half the States of the Union. (333 U.S. at 523-524)
….
No one would deny, I assume, that New York may punish crimes of lust and violence. Presumably also, it may take appropriate measures to lower the crime rate. But he must be a bold man indeed who is confident that he knows what causes crime. Those whose lives are devoted to an understanding of the problem are certain only that they are uncertain regarding the role of the various alleged “causes” of crime… Is it to be seriously questioned, however, that the State of New York, or the Congress of the United States, may make incitement to crime itself an offense? He too would indeed be a bold man who denied that incitement may be caused by the written word no less than by the spoken… This Court is not ready, I assume, to pronounce on causative factors of mental disturbance and their relation to crime… (333 U.S. at 526-527)

I should add here that Justice Scalia’s opinion (2011 U.S. LEXIS 4802, at p.22-23) faults the State of California for failing to “show a direct causal link between violent video games and harm to minors.”

Last year, the Supreme Court also ruled in Graham v. Florida that the “Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” In so holding, the Court stated that it must look beyond “historical conceptions” to “‘the evolving standards of decency that mark the progress of a maturing society'” and justified its decision in part on the grounds that juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable or susceptible to negative influences…'” In other words, while some Justices will look beyond “historical conceptions” they disagree with, they act is if others are written in concrete. And as for those “negative influences,” they apparently do not include exposure to graphic, sadistic and imitable depictions of murderous violence as entertainment.

The above mentioned Roth case (354 U.S. at 384) went on to say:

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec: “The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of governments….’ 1 Journals of the Continental Congress 108 (1774).”

And what, we the American people should now be asking, do obscene violent video games have to do with “unfettered interchange of ideas for the bringing about of political and social changes desired by the people” or with “advancement of truth, science, morality and arts in general”??

Part of the Supreme Court’s problem is that its Justices create “constitutional tests” out of thin air and then later apply these tests in situations where they have no rightful application. One such test is “strict scrutiny,” which arguably is properly applied in cases where a law would ban or regulate speech that is at the core of First Amendment concern and is intended for adults [see, e.g., First National Bank v. Bellotti, 435 U.S. 765 (1978); Boos v. Barry, 485 U.S. 312 (1988)]. This “strict scrutiny” test, however, has no rightful application when government is attempting to protect children from “speech” that is harmful to minors. And despite what some Supreme Court Justices may assert, the First Amendment, properly understood, does not require conclusive scientific proof of causation before a government can properly act to protect children.

As Justice Scalia’s opinion (2011 U.S. LEXIS 4802, at p.22) states, “strict scrutiny… is a demanding standard. ‘It is rare that a regulation restricting speech because of its content will ever be permissible.’ Playboy, supra, at 818.” What this means in plain English is that whether the “content” is obscene video game violence or hardcore but presumptively non-obscene pornography on cable TV and on the Internet, government no longer has any power to enact meaningful legislation to protect children from it.

Gregarious in nature, humans form governments to help order the communities in which they live and to protect themselves from irresponsible and evil persons who would harm the community or individuals in it-including children, who often need special protections. Parents alone cannot do the whole job themselves. And with all due respect to Justice Scalia, the First Amendment was intended primarily to protect political speech and other speech on matters of public concern [see, e.g., Snyder v. Phelps, 131 S. Ct. 1207 (2011)], not to give adults a “right” to peddle obscene violent entertainment to children to children.