The Supreme Court ended its term with a vigorous defense of free speech, striking down a California law that banned sales of violent video games to minors and effectively shielding the entertainment industry from any government effort to limit violent content.
WASHINGTON — The Supreme Court ended its term with a vigorous defense of free speech, striking down a California law that banned sales of violent video games to minors and effectively shielding the entertainment industry from any government effort to limit violent content.
“Like books, plays and movies, video games communicate ideas,” said Justice Antonin Scalia in his majority opinion Monday. And he said there “is no tradition in this country of specially restricting children’s access to depictions of violence. … Grimm’s Fairy Tales, for example, are grim indeed.”
The decision, coming on the term’s last day, highlights a consistent theme of the high court under Chief Justice John Roberts: Freedom of speech is almost always a winner, even if the context is unusual.
While the outcome in First Amendment cases has been consistent, the voting has not followed the usual conservative-liberal pattern.
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In Monday’s decision, in the case of Brown v. Entertainment Merchants Association, a 7-2 majority voted against California’s law, but the justices split 5-4 over whether violence in the media ever can be regulated to protect children.
Scalia, one of the court’s most conservative justices, wrote for a five-member majority that included three liberal justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, as well as Justice Anthony Kennedy, often the court’s swing vote.
His opinion voiced strong support for free speech even when children are the audience. But his support came with an exception established in cases four decades ago: The law can protect children from sex and pornography in the media, he said, but it cannot protect them from violence.
He cited court precedents that exempted from the First Amendment “obscenity” and pornography directed at children.
Justice Clarence Thomas, usually a conservative ally of Scalia’s, took the opposite view. In his dissent, he said California’s law should be upheld because juveniles have no right to free speech. In the past, Thomas voted to strike down anti-pornography laws.
Justice Stephen Breyer also said he would have upheld California’s law.
Justice Samuel Alito, joined by Roberts, agreed California’s law should be struck down, but only because it did not clearly spell out which games would violate the law.
The law passed the legislature in 2005. It would have imposed a $1,000 fine on those who sold or rented a video game to someone under 18 that featured the “killing, maiming, dismembering or sexual assaulting” of a human image and “appeals to deviant or morbid interest.”
Before the law could take effect, the gaming industry sued, and judges put the law on hold.
Industry officials said they were pleased and relieved by the decision. A ruling upholding California’s law would almost certainly have triggered laws in other states as well as broader measures to restrict violence in the media.
Michael Gallagher, president and CEO of the Entertainment Software Association, called the ruling “an overwhelming endorsement of the First Amendment, the right to free expression and the freedom of speech. It’s also a great victory for parents and right of parents.”
“They are to be in control, not the state, for the content that is used, consumed and enjoyed in the home,” Gallagher said.
Advocates for parental control of the media were disappointed.
“This ruling replaces the authority of parents with the economic interests of the video-game industry,” said Tim Winter, president of the Parents Television Council in Los Angeles.
“With no fear of any consequence for violating the video-game industry’s own age-restriction guidelines, retailers can now openly, brazenly sell games with unspeakable violence and adult content even to the youngest of children,” Winter said.