[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Just heard via Scotusblog which likes to live blog when they release their opinions. I will share details as I learn of them.
Update: Here’s the opinion. Scalia wrote the majority opinion, which isn’t too surprising, because he is pretty bully on freedom of expression. Interestingly Thomas, who agrees with Scalia a very large percent of the time, dissents. And I don’t want to imply that Thomas simply apes Scalia. In fact on at least two occasions it appears that Scalia and Thomas disagreed, but eventually Scalia came over to his way of thinking. The first was on the subject of cross burning, and the second was on the need in criminal cases to prove every sentence enhancement beyond a reasonable doubt.
Mind you, I have not had a chance to read any of it yet. Which I will now do.
Update: Also, I previously posted on the case, here.
Update: I am not going to live blog reading the opinion, but this line is very significant:
California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.
If memory serves, many lower courts recognized that video games were a form of expression, but I don’t believe the Supreme Court has ever said so before. I particularly appreciate how he understands that even the way the players interact with their world can be expressive.
Update: Some notes from Scalia’s opinion.
Scalia takes a few shots at his colleagues in the footnotes. In footnote 1, he writes:
JUSTICE ALITO distinguishes Stevens on several grounds that seem to us ill founded. He suggests,…that Stevens did not apply strict scrutiny. If that is so (and we doubt it), it would make this an a fortiori case. He says, … that the California Act punishes the sale or rental rather than the “creation” or “possession” of violent depictions. That distinction appears nowhere in Stevens itself, and for good reason: It would make permissible the prohibition of printing or selling books—though not the writing of them. Whether government regulation applies to creating, distributing, or consuming speech makes no difference.
Which sounds right to me. I mean that is the dodge they tried on Citizens United, which I took apart by saying:
“But wait,” I hear you say, “didn’t all those news stories say this was about campaign expenditures?” Well, this is where the media has been incredibly disingenuous on this topic. The FEC said that they could not purchase advertising. So you can judge for yourself whether this sounds more like a mere restriction on spending, or a restriction on freedom of expression.
Meanwhile he gets a little harsh on Thomas in footnote 3:
JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.
For judges that is pretty harsh and it goes on in some detail.
And Scalia gives us some of the phrasing he is famous for:
Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” … Cinderella’s evil stepsisters have their eyes pecked out by doves. … And Hansel and Gretel (children!) kill their captor by baking her in an oven. …
And there is a fun walk down memory lane at the terror of other new technology turning our kids to crime, dated at the turn of the 20th Century. Everything old is new again, I suppose.
And I like how he disposed of the interactivity argument:
California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. … As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it 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.
And this amuses me:
JUSTICE ALITO has done considerable independent research to identify, … video games in which “the violence is astounding[.]”
Which raises the question, if video game violence warps people’s minds, then what has he just done to himself? Meanwhile, on pages 12 and 13, he tears apart the psychological evidence, and then declares that the law is a joke in his mind because all that is needed is a parent’s (or uncle’s) consent:
The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the handsof children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.
That isn’t just a policy criticism, but then it means that the law suffers from being under-inclusive.
And on page 15, he argues that the law is not necessary anyway because of voluntary ratings.
Otherwise, its pretty direct “free speech beats public panic” stuff. Not a bad opinion but there is a certain been-there-done-that to the proceedings.
Please note, by the way, that this is the fully-joined opinion of five of the justices. Two concur, and two dissent. Expect more updates as I work through the other opinions.
Update: I read through Alito’s opinion. He considers this law to be impermissibly vague (something I mentioned in my previous post on the subject), but wants to encourage legislatures to try narrower laws. Indeed, much of the opinion seems to be directly written in order to teach legislatures how to write laws he is more likely to uphold. And in doing so, he gets all living constitution about it:
I disagree, however, with the approach taken in the Court’s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.
And for extra fun, on page 15, the infamous Custer’s Revenge is mentioned. Alito writes about it “in another [game], the goal is to rape Native American women[.]”
Of course it might be useful to actually see what he is upset about. Now, I have video of this game in action, but you have to be very careful and suppress any rapey desires. I’ll even put it below the fold because it is so shocking…