SCOTUS ruling says that for minors, nudity is worse than violence

June 29, 2011

Scalia in Brown v entertainment merch assnThis week, the Supreme Court handed down its long-awaited decision on California’s law banning the sale of violent video games to minors.

The diverse views of the justices more or less reflect the diverse views of the populace on the matter, with at least four different attitudes expressed in the 41 page opinion.

The majority, consisting of Scalia, Kennedy, Sotomayor, Kagan, and Ginsburg, ruled that video games, as a form of protected free speech, couldn’t be restricted based on their content.

A concurrence of Alito and Roberts agreed with the majority on the issue that the California law was unconstitutionally vague (basically, due process requires that laws give people fair notice of what is prohibited), but disagreed that free speech protections ought to extend to violent video games.

A dissent by Thomas claimed that the Founders understood free speech as being subject to a parent’s control over his or her minor children, and consequently, the broadest constitutional free speech protections do not extend to minors.

The other dissent by Breyer found that the law was not unconstitutionally vague, and that violent video games are a form of obscenity.

If not for the obscenity issue, the ruling wouldn’t be anything particularly remarkable (for a more detailed discussion of obscenity and free speech, see last week’s Legal History post).

In short, “obscenity” is only of the only kinds of speech not protected based on its content.

With that in mind, California Senator Leland Yee wrote the law by copying the Miller test into it almost verbatim, with just a few tweaks to make it apply to violent video games.

His argument was the same as Breyer’s: violent video games are a form of obscenity, and are therefore not protected by the First Amendment.

Senator Yee may have succeeded with the law if not for a longstanding legal principle: nudity is more dangerous to kids than violence.

The principle is affirmed in the Court’s ruling.

How?

Because the Court struck down the California law for prohibiting violent speech to minors when an almost identical New York law prohibiting sexual speech to minors was upheld in 1968’s Ginsberg v. New York.

Scalia waves this notion off by explaining that there’s no longstanding tradition of restricting violent speech to minors, pointing to Grimm’s Fairy Tales and Homer’s The Odyssey as examples of violent speech long available to minors.

While Scalia has a point, that’s not a complete legal argument.

In addition, it’s a bit hypocritical to base a broad assertion solely on perceived national traditions and then mock Justice Thomas repeatedly for doing the same thing in his dissent.

Of course, hypocrisy characterizes this decision, and the jurisprudence it represents.

The opinion repeatedly states that any content-based speech restrictions must survive a strict scrutiny test, except for sexual content, which may be banned because it’s always been that way.

Logically extended from the Court’s rationale, it’s okay for minors to be heavily exposed to lifelike and interactive violence in video games, but that any exposure to photographs of a nude woman would be immeasurably damaging.

Breyer reaches this same conclusion, but his concerns fall on deaf ears, it seems.

Anyhow, this probably isn’t the end of states attempting to limit violent content to minors, so the opinion of the Court in the future may very well shift with its changing members.

However, Scalia is correct in asserting that in society, sexuality has always met opposition where violence hasn’t.

Thus, according to Scalia, if the law is to change, the views of the populace must also change.