One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings.
Yet, as Justice Scalia’s majority opinion made clear, any such assumption—like so many of the virtual bystanders in these games—was dead on arrival. Justice Scalia’s opinion was not a methodical exegesis about when speech could be curtailed to protect minors. Rather, his opinion was a judicial broadside—the verbal equivalent of throwing the California claim out of the courthouse door, down the marble staircase, and into a District of Columbia dumpster.
What happened? Was the claim that violent video games are harmful to children so obviously specious? Was it preposterous to think that the First Amendment would tolerate any limits on video game sales even if the limits were restricted to minors?
To my mind, there is no good explanation for what the Court did. The majority simply failed to wrestle with the serious issues raised by the case and instead signed onto Justice Scalia’s glibly written opinion with its facile, “reasoning-lite” analysis.
In this Article, I deconstruct Justice Scalia’s reasoning and bare its weaknesses. My goal is not to gratuitously criticize but to offer constructive suggestions for improving the Court’s analysis of First Amendment cases. I believe my suggestions will help produce decisions that more thoughtfully and thoroughly evaluate the competing claims in free speech cases.
I. The Whitewash: The Similarity Between Violent Video Games and Grimm’s Fairy Tales
Justice Scalia never denied that video games can be wildly depraved. But only Justice Alito, who wrote a separate concurrence, described what actually happens in the games.
The violence is “astounding,” Justice Alito observed. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.” As victims “cry out in agony and beg for mercy, . . . [b]lood gushes, splatters, and pools.” Perhaps most appalling is the industry’s willingness to exploit even the most extreme forms of antisocial behavior, including games in which players reenact the killings at Columbine High School, participate in ethnic cleansings of African Americans, Latinos, or Jews, or strive to win a game by successfully raping both a mother and her daughters.
Justice Scalia, by contrast, had no intention of taking this easy way out. He wanted to wrestle head-on with the substantive claim that minors could be denied access to violent speech. And his decision made clear that he found this claim largely—if not wholly—untenable under the First Amendment.
The next two Parts critique Justice Scalia’s reasoning. This Part sets the stage by examining how Justice Scalia blunted the force of California’s argument by equating video game violence with the violence in other children’s media, such as comic books and fairy tales.
Justice Scalia made this analogy while rejecting the argument that violent children’s media should be an unprotected category of speech. He conceded that such a claim might be viable if there had been a tradition of denying children access to violent media, but he said the opposite had been true. To prove it, he launched into a hit parade of violence in children’s literature. For younger children, he cited Hansel and Gretel pushing the witch into the burning oven and Cinderella’s stepsisters having their eyes pecked out by doves. For the high school set, he listed Odysseus grinding out the Cyclops’s eye and the corrupt politicians in Dante’s Inferno struggling to stay “submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface.”
When confronted with the argument that video games are different because of their “interactivity,” Justice Scalia scoffed. “[A]ll literature is interactive,” he retorted, and quoted fellow judge and former University of Chicago law professor Richard Posner to drive his point home: “[T]he better [literature] is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
Justice Scalia did concede that reading Dante is different from playing Mortal Kombat because the former is “unquestionably more cultured and intellectually edifying.” But he was oblivious to other differences between a parent reading a bedtime story and a teenager engaging in endless hours of virtual mayhem in his locked room.
By equating violent video games with fairy tales, Justice Scalia made his argument more palatable. He shifted the emphasis from defending the right of children to murder, maim, and sexually assault virtual victims to rejecting the right of political-correctness cops to snatch Snow White out of toddlers’ tiny hands.
The equation also gave Justice Scalia an opportunity to remind readers that virtually every new form of children’s media has been subject to criticism. He began with the complaints in the 1800s against crime story “dime novels,” which were said to foster juvenile delinquency, and continued with the history of complaints lodged against movies, comic books, radio and television programming, and song lyrics.
Since most of these works seem tame by today’s standards and the outcry against them overblown, one is left wondering whether opposition to violent video games is likewise an overreaction.
That is certainly a fair point and worthy of attention. It puts the question of whether video games are different from other media front and center. Yet, as the following sections detail, when the time came for Justice Scalia to wrestle with that question, he wanted none of it. Instead, his refusal to seriously consider the evidence left the impression that his mind had been made up from the start. This was hardly surprising, of course, given his unwillingness to acknowledge relevant differences between graphic video game violence and little Gretel pushing the witch into the oven.
II. Categorical Imperative: The Difference Between Being Bound, Gagged, and Tortured and Being Bound,
Gagged, and Tortured While Topless
Justice Scalia began his analysis of the California law’s constitutionality by asking whether violent speech, at least when targeted toward children, should be an unprotected category of speech. This was a logical starting point because the Supreme Court has said that regulation of certain categories of speech has “never been thought to raise any constitutional problem.”
Because violent speech is not among the unprotected categories, California had to convince the Court to recognize a new category. The closest analogy the State could find was obscene speech, which has long been unprotected by the First Amendment. The analogy was especially appealing because the Court has said that the obscenity definition can be expanded when materials are being offered to minors.
Justice Scalia, however, was unconvinced. He strongly rejected the notion that judges can identify new categories of speech by merely weighing a speech’s social value against its costs. He found this a “‘startling and dangerous’” proposition that threatened protection for all unpopular speech.
Justice Scalia said new categories could be created only for speech that had been historically proscribed. Otherwise, judges might inject their personal prejudices into deciding which categories were unprotected.
Having laid down this rule, Justice Scalia decisively rejected California’s arguments. First, and as noted in the previous Part, he said there was no history of denying minors access to violent material. In fact, the opposite was true. So there was no basis for finding a new category of unprotected violent speech.
Second, California could not argue that violent speech was a form of unprotected obscenity. Obscenity, Justice Scalia made clear, is about sex, not violence. It does “not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’”
Justice Scalia’s argument was perfectly sound under Supreme Court precedent. The problem is that the precedent is unsound.
The notion that judges can identify categories of unprotected speech is wholly inconsistent with the Court’s oft-repeated statement that “there is no such thing as a false idea” under the First Amendment. It inverts the principle that the government must be neutral in the marketplace of ideas.
Not surprisingly, then, the categorical approach has largely collapsed in the years since it was first announced in Chaplinsky v. New Hampshire. Some categories like profanity and lewdness were removed from the list of unprotected speech by subsequent cases finding the speech protected. Other categories were found unprotected only if there was a sufficiently important reason to suppress the speech (typically that the speech would lead to imminent violence or unlawful action), a standard that mirrors the compelling interest standard required to suppress protected speech.
Admittedly, false statements of fact are unprotected, but that is because they lack any First Amendment value. And child pornography is unprotected because children are harmed in the speech’s production.
But obscenity is the only oddball category that is unprotected in the absence of any concrete harm. Of course, Justice Scalia might say this is justified by the long history of suppressing obscene speech. But this “history and tradition” approach for identifying unprotected speech is as unpersuasive in the First Amendment context as it is for identifying fundamental rights in the substantive due process context. It is a principle that sometimes works fine (as in supporting the right to marry under substantive due process), but can just as easily reinforce age-old prejudices (as in undermining the right of gays to marry).
Indeed, the tradition of suppressing obscene speech may be nothing more than a relic of Victorian-era prudishness—a relic that makes little sense in the modern era. And even if the tradition does make sense, as Justice Scalia surely thinks it does, what could possibly justify a First Amendment jurisprudence that permits bans on speech appealing to the “prurient” interest but fully protects over-the-top, gratuitously violent speech?
That brand of jurisprudence only invites ridicule, which Justice Breyer could not resist offering in his Brown dissent: “What kind of First Amendment would permit the government to protect children by restricting sales of [an] extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
III. Lies, Damned Lies, and Statistics: The Difference Between Explode (bad) and Explore (good)
The categorical approach to the First Amendment makes no sense. But the Court’s longstanding use of strict scrutiny to evaluate content-based regulations of speech does. The standard requires a candid evaluation of the justification for suppressing speech (i.e., the government’s interest must be “compelling”) and a careful examination of whether the means used are properly tailored (i.e., they must be the least speech-restrictive means available).
The problem in evaluating content-based regulations of speech is not what standard should be applied but how it should be applied. After all, it’s easy to say that the government’s interest must be “compelling.” But what limiting principle ensures that what is compelling is anything more than the ipse dixit conclusions of five justices?
The most tempting way out of this dilemma is for the Court to insist on empirical proof that the government’s interest is compelling. That is precisely what Justice Scalia did when he said that California “must specifically identify an ‘actual problem’ in need of solving.”
California’s dilemma, Justice Scalia said, was that it failed to meet this standard. He required the State to “show a direct causal link between violent video games and harm to minors,” but all it provided was evidence of correlation, not causation. The evidence also showed only “small” harmful effects and ones that were “indistinguishable from effects produced by other media.”
To show the feebleness of the State’s evidence, Justice Scalia cherry-picked what must have been the weakest empirical study he could find:
One study . . . found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling interest.
All of this sounds convincing until one realizes that Justice Scalia disposed of the State’s empirical argument in two short paragraphs. That might have been justified if the literature was indisputably weak. But Justice Breyer’s dissent makes a powerful argument that the literature—including the 149 studies he lists in two appendixes—could not be so easily dismissed.
Indeed, it is hard to reconcile Justice Scalia’s brusque dismissal of the empirical evidence with a joint statement Justice Breyer quotes from the American Academy of Pediatrics, the American Psychological Association, and other organizations:
[O]ver 1000 studies . . . point overwhelmingly to a causal connection between media violence and aggressive behavior in some children . . . [and . . . preliminary studies indicate that] the impact of violent interactive entertainment . . . on young people . . . may be significantly more severe than that wrought by television, movies, or music.
Perhaps Justice Scalia had just set the evidentiary bar too high. After all, proving that violent video games cause minors to engage in violent behavior is easier said than done. Researchers cannot raise newborns in a vacuum to isolate for the effects of video games. It can also be unethical or illegal for researchers to expose minors to extremely violent games. So perhaps a more forgiving standard is warranted.
Applying a demanding evidentiary standard is also complicated by judges’ limited expertise in evaluating empirical studies. Justice Powell, for example, once candidly confessed that his “understanding of statistical analysis . . . ranges from limited to zero.”
Yet, if judges are going to insist on empirical proof, they need to make a credible stab at evaluating empirical studies. For as Justice Breyer has rightfully said, “[i]n this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms.”
Still, no empirical evidence was likely to sway Scalia who viewed the California law as a bald attempt to suppress offensive speech. Scalia’s mistake, however, was that he overlooked the possibility that a First Amendment analysis should be altered when a law affects only minors.
After all, the threat to free speech interests is reduced when only minors and not adults are denied access to speech. And laws denying children access to speech can further the parents’ constitutional right to control their children’s upbringing. Indeed, the California law facilitated parental control by preventing minors from buying games while allowing parents to buy the games for their children.
Of course, the government cannot deny minors access to information about evolution, communism, or sexually transmitted diseases even if every parent in the country supported it. But maybe the government should be able to limit minor access to speech when parents broadly support the regulation and the speech lies on the border of what even adults may be denied.
So, for example, if adults can be denied access to speech that incites imminent violence, perhaps children can be denied access to speech that encourages violent behavior even in the absence of imminent action. Such an approach would comport with the Court’s longstanding recognition that children can be treated differently because of their developmental immaturity.
Certainly, the Court must be vigilant when people of any age are denied access to speech. It must ensure that the regulation is not just targeting an unpopular message and that the harm being addressed is real. But Justice Scalia never gave the California law a fighting chance. He may have been right that California could not establish the need for its regulation. But he should have given the empirical evidence the airing it deserved.
Justice Scalia’s decision hit all of the bases that Supreme Court precedent required for a proper First Amendment analysis. Yet, the decision is unsatisfying and unconvincing because it failed to reach the heart of the matter. Justice Scalia failed to recognize that a First Amendment analysis is different when only minors are denied access to speech. He failed to see the shortcomings of a categorical approach that treats sex as more abhorrent than violence. And he failed to give the empirical evidence the consideration it deserved. Remedying these failures would lead to more persuasive opinions that better evaluate the competing interests in First Amendment cases.
* Distinguished Professor of Law, Widener University School of Law. I am grateful to Laura Ray for her helpful comments on earlier drafts.
. 131 S. Ct. 2729 (2011).
. Ginsberg v. New York, 390 U.S. 629, 631, 636–37 (1968).
. Brown, 131 S. Ct. at 2749 (Alito, J., concurring).
. Id. at 2749–50.
. Id. at 2751.
. Id. at 2742–46.
. Id. at 2734–38 (majority opinion).
. Id. at 2736–38.
. Id. at 2736.
. Id. at 2736–37.
. Id. at 2737–38.
. Id. at 2738.
. Id. (quoting Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001)).
. Id. at 2737 n.4.
. Id. at 2737.
. Id. at 2732–33.
. Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).
. Brown, 131 S. Ct. at 2734.
. Miller v. California, 413 U.S. 15, 23 (1973) (stating “that obscene material is unprotected by the First Amendment”).
. Ginsberg v. New York, 390 U.S. 629, 638 (1968).
. Brown, 131 S. Ct. at 2734 (quoting United States v. Stevens, 130 S. Ct. 1577, 1585 (2010)).
. Id. at 2736–37; see also supra notes 9–12 and accompanying text.
. Brown, 131 S. Ct. at 2735–36.
. Id. at 2734.
. Id. (quoting Miller v. California, 413 U.S. 15, 24 (1973)).
. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
. Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech §§ 4:6-4:7 (2010).
. 315 U.S. 568, 571–72 (1942) (listing categories of unprotected speech).
. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (protecting lewd speech); Cohen v. California, 403 U.S. 15, 26 (1971) (protecting lewd speech); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505–06 (1952) (protecting profane speech).
. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
. Gertz, 418 U.S. 323, 340 (1974).
. New York v. Ferber, 458 U.S. 747, 756–57 (1982).
. See Lawrence v. Texas, 539 U.S. 558, 572 (2003) (“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring))).
. Compare Zablocki v. Redhail, 434 U.S. 374, 383–84 (1978) (describing historic recognition of right to marry), with Lawrence, 539 U.S. at 594 (Scalia, J., dissenting) (arguing that homosexual sodomy is not deeply rooted in the nation’s history and tradition).
. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2771 (2011) (Breyer, J., dissenting).
. Id. 131 S.Ct. at 2738 (majority opinion).
. Id. (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 822 (2000)).
. Id. at 2738.
. Id. at 2739.
. Id. at n.7 (internal citation omitted).
. Id. at 2739.
. Id. at 2768–70 (argument); id. at 2771–79 (appendices).
. Id. at 2769 (quoting Am. Acad. of Pediatrics et al., Joint Statement on the Impact of Entertainment Violence on Children, Congressional Public Health Summit (July 26, 2000), available at http://www.aap.org/advocacy/releases
. Cf. Amitai Etzioni, On Protecting Children from Speech, 79 Chi.-Kent L. Rev. 3, 38 (2004) (noting that ethical considerations prevent researchers from exposing minors to pornography).
. John C. Jeffries, Jr., Lewis F. Powell, Jr. (1994), reprinted in John Monahan & Laurens Walker, Social Science in Law 315, 315 (5th ed. 2002).
. Stephen Breyer, Introduction to Fed. Judicial Ctr., Reference Manual on Scientific Evidence 2 (2d ed. 2000).
. Brown, 131 S. Ct at 2731–32.
. Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925).
. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
. Roper v. Simmons, 543 U.S. 551, 569 (2005); Bellotti v. Baird, 443 U.S. 622, 633–38 (1979).