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June 27, 2011

Any speculations on criminal justice echoes from SCOTUS rejection of violent video game regulation?

The Supreme Court rejected California's effort to regulate minors' access to violent video games as violative of the First Amendment today in EMA v. Brown (opinion here). Here is a key passage from the end of the opinion for the Court authored by Justice Scalia:

California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them — concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development.  Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571– 572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not).  Even where the protection of children is the object, the constitutional limits on governmental action apply.

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.  See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).  As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.  And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

Nothing jumped out from a quick scan of Justice Scalia as obvious fodder for use by criminal justice advocates in other contaxts.  But, as the question in the title of this post is meant to prompt, I think the ruling could have echo effects and I am eager to hear early reader perspectives on this front.

June 27, 2011 at 10:47 AM | Permalink

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Comments

Another great SCOTUS split on partisan and even Constitutional lines. Interesting arguments with regard to parental control. As someone who deals with sex offender issues from both victims' and offenders' standpoints, I most agree with the Thomas dissent, as (I believe) that there should be some modicum of parental control in the guidance of their children's upbringing, even in a true Libertarian society, should be paramount. I believe that Thomas carefully avoided the slippery slope of such censorship with that coherent argument.

Using the same argument of the concurrence, then, the V-chip, as well as the movie and music "explicit lyrics" guide should be deemed unconstitutional. Even X-rated movies may fall under this opinion, though I suspect that if the object in this case was not a shoot-em-up video game but a video of "Debbie Does Dallas," the Court may not have had the same opinion.

Posted by: Eric Knight | Jun 27, 2011 12:16:47 PM

"While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them — concerns that may and doubtless do prompt a good deal of parental oversight."

This might be the the third decision that mentions scientific evidence. Brown v Bd of Ed, Mass v EPA. Now EMA v Brown. That laws and judicail decisions should have empirical support is novel, and would markedly improve the quality of legal decision making, if adopted by the lawyer profession. Laws are procedures on the body, and should be proven safe and effective before enforcement.

Posted by: Supremacy Claus | Jun 28, 2011 6:35:52 AM

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