Just a Helpful Reminder: Today’s First Amendment Victory Came Because Corporations Are Allowed to Speak Freely
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
You know that decision in the Supreme Court today? Brown v. Entertainment Merchants Association? You know, the one that struck down that law restricting sales of violent video games?
That wouldn’t have been possible unless the Supreme Court held that so-called corporate speech was protected under the First Amendment, too.
Now a lot people think that the Supreme Court ruled that way for the first time in Citizens United. In fact they had been ruling that way for years. Many of the most importance cases involving Corporations: New York Times Company v. Sullivan (landmark defamation case), and Hustler Magazine, Incorporated v. Falwell (featured in the movie, The People v. Larry Flynt, although the title is a misnomer). Each of those decisions affirmed the vitality of freedom of speech, and each of them could have been decided much more simply if they said, “well, you’re a corporation, therefore you have no free speech rights, therefore you lose.”
Likewise, I don’t believe I have played a game in the last 25 years that was made by one guy; they are always made by corporations: Activision, Rock Star, and EA Games. So those who wanted to claim that once people associated into a corporation, that they were stripped of all speech protection, should would have allowed the court to say, in this case, “this law is unconstitutional as it applies to humans, but valid as it applies to corporations.” And since it appears to be practically impossible for modern gaming to be created without a corporation (or at least some kind of collective action), the practical effect of such a ruling would be to make all gaming subject to the whims of the legislature.
So next time a liberal complains about Citizens United giving corporations the right to speak, ask them if they like video games.
[Posted and authored by Aaron Worthing.]
Minecraft, one man, one great game. Look it up.
bskb (334c50) — 6/27/2011 @ 1:43 pmbskb
my apologies, i stand corrected. but certainly most games are rarely done by one guy.
Aaron Worthing (e7d72e) — 6/27/2011 @ 1:54 pmYeah, most games these days are absolutely massive productions, involving the creativity or nuts and bolts know how of a lot of people. And then the polishing from yet more people.
It’s the most interesting art form of our time, IMO. A lot of ideas are being conveyed where you actually make the choices. Now, 95% of those ideas are either typical Hollywood plotlines or what I consider stereotypical liberal morality. Like karma based games will often establish an idea that the ‘good’ thing to do is basically what a democrat would do.
But that’s what freedom of speech is like sometimes.
Dustin (c16eca) — 6/27/2011 @ 2:00 pmdustin
btw, a round of of industry reaction here.
http://games.ign.com/articles/117/1179211p1.html
the guy from gearbox feels the need to say gosh i can’t help but think that Duke Nukem Forever would have been banned under this law.
and suddenly i start to think the Sup. Ct. came out the wrong way…
(kidding)
Aaron Worthing (e7d72e) — 6/27/2011 @ 2:25 pmouch.
Dustin (c16eca) — 6/27/2011 @ 2:31 pmjoking aside, that was a seriously shameless plug from him.
and i would rather play borderlands.
Aaron Worthing (e7d72e) — 6/27/2011 @ 2:33 pmI’d rather play tetris!
Dustin (c16eca) — 6/27/2011 @ 2:37 pmAaron, you are misrepresenting the decision. Scalia’s ruling has nothing to do with the supposed “personhood” of corporations. It’s about the power of the state to restrict expression based on content, and nothing else.
Jestak (29d8c2) — 6/27/2011 @ 3:35 pmJestak, I think Aaron present that too when he said:
Anyway, it paints a picture where corporations have the right to not have their expression restricted in this way.
Dustin (c16eca) — 6/27/2011 @ 4:01 pmjestak
a facial challenge can only win if a substantial amount of the speech involved is protected speech.
if anyone decided to overturn those precedents protecting corporate speech then this law would be very likely to survive the facial challenge because almost all “video game speech” is corporate speech.
Yes, scalia didn’t talk about it, because in fact the principle that corporations have speech rights is fairly settled. But if people like jon stewart got their way on this point, free speech might have lost.
Dustin
I have decided, to celebrate, i am going to play God of War, which surely will appall Thomas and Breyer.
Don’t forget breyer was the one who suggested that maybe blasphemy could be banned, esp. koran burning. that’s over at that other blog you have been working on… 🙂
Aaron Worthing (73a7ea) — 6/27/2011 @ 4:37 pmThe power of the state to restrict whose expression? Non-persons have no rights, and the state may restrict their expression without limit, whether based on content or on any other criterion it chooses. It’s only because the Court has already established that corporations have first amendment rights that today’s decision is possible.
Milhouse (ea66e3) — 6/27/2011 @ 5:30 pmI guess I don’t understand this. What does this have to do with GennettC and John Reid?
//I keed.
Pious Agnostic (6048a8) — 6/27/2011 @ 5:39 pmif anyone decided to overturn those precedents protecting corporate speech then this law would be very likely to survive the facial challenge because almost all “video game speech” is corporate speech.
That’s your spin on things, Aaron, but there is no language in Scalia’s opinion suggesting that. None at all. The law sought to limit free expression based on content, which is why it failed to pass constitutional muster. The standard for restricting speech based on content, as Scalia noted (in an example of one of the few constitutional issues he understands), is extremely high.
Jestak (29d8c2) — 6/27/2011 @ 6:03 pmJestak – You seem quite intent on either not understanding’ or ignoring, the point that AW was making.
JD (318f81) — 6/27/2011 @ 6:13 pmthis speech came from corporations in this case.
Aaron’s not misrepresenting a thing. He’s providing his analysis.
Dustin (c16eca) — 6/27/2011 @ 6:26 pmJestak, commercial speech is speech regulated on the basis of content too. Think about it.
Pedobear (26be8b) — 6/27/2011 @ 6:32 pmthis speech came from corporations in this case.
There was nothing about the law that limited its impact to video games produced by corporations. A sole proprietor who developed and produced games would have been equally subject to its restrictions. If you read Scalia’s opinion it’s extremely clear that the law targeted games based on their “violent” content
Jestak (29d8c2) — 6/27/2011 @ 7:09 pmA sole proprietor could never be a corporation?
JD (318f81) — 6/27/2011 @ 7:20 pmWhen people have to say ‘extremely clear’ I worry they are trying to distract me.
I don’t know. I’ve been dealing with a lot of bad faith today, so I’m not feeling charitable. Aaron didn’t hide the aspect you’re talking about, so you were in error to criticize his analysis. He’s free to observe we’re talking about the speech of a corporation when he talks about the decisions of Scalia, Alito, and Thomas. I don’t know why you think he’s not.
Dustin (c16eca) — 6/27/2011 @ 7:33 pmthat’s a profit to earnings ratio, there, JD.
ian cormac (72470d) — 6/27/2011 @ 7:34 pmJestak
> That’s your spin on things, Aaron, but there is no language in Scalia’s opinion suggesting that. None at all. The law sought to limit free expression based on content, which is why it failed to pass constitutional muster.
But if a corporation has no right to speak at all, then even content based restrictions would be allowed.
Aaron Worthing (73a7ea) — 6/27/2011 @ 7:34 pmTrue, but the respondent in this case is a corporation, so if Citizens United had gone the other way then the Entertainment Merchants Association would have automatically lost for lack of standing. The ninth circus would have had to reverse itself, and law at issue would have remained upheld until some natural person with standing could be found to challenge it.
Milhouse (ea66e3) — 6/27/2011 @ 11:42 pmAnd even then, it would only have been struck down as applied to natural people, not as applied to corporations, which means it would still apply to 99.9% of the games in the market.
Milhouse (ea66e3) — 6/27/2011 @ 11:43 pmAmazing as it is, pornography is not sold to kids, yet they can find it online. I found my 11-year old nephew trying to show my kids a sordid picture.
In this case, I actually intervened and scolded appropriately. No law was created here.
When a society attempts to punish all through legislation, another burdening law with all the checks/balances/challenges/court costs that the public will pay, it signals the end of parental responsibility.
I am glad the SCOTUS dropped this as well as the AZ campaign BS law. Another attempt by Dems to “level” the playing field: Dems do not get much in-state contributions and outside contributions are pointed out, the only way to “compete” “fairly” is to raid the public coffers to get monies that compare to the Rep candidate.
jdubya (d0b879) — 6/28/2011 @ 8:29 am