Deliberation, debate, whatever, the Supreme Court finally concluded and ruled 7-2 last Monday to uphold the decision of the Ninth Circuit that video games enjoy broad protection under the First Amendment. The preceding decade, instantly, becomes a discrete block on a historical timeline: an interregnum of legislative roving in the absence of constitutional certitude. As expected, California's Leland Yee — catalyst for the legal kinetics ending in Washington — aspersed, Wal-Mart this and corporate interests that. The eleven state attorneys general sending along an amicus brief might insist, We only wanted to do good, but that will be their last quote on the subject for a generation.
Antonin Scalia wrote the majority opinion. He was joined by four of his colleagues. Samuel Alito arrived in concurrence by parallel conclusions, joined by John Roberts. Clarence Thomas refused to accept the premise on which the majority rested, delivered in the studious idiom that is his. Stephen Breyer dissented, too, in what can be defined better as a proclivity.
The majority's point was made evenly: 1) video games are considered protected speech, and even Yee agrees; 2) precedent insulates the principle of free expression against confusion from all the modalities proffered by science; and 3) to those ends, simulations of violence in video games cannot be transposed to either actual violence or sexual obscenity, both of which may otherwise be regulated. "[S]peech about violence is not obscene," and thus the state has no place to proscribe it — not for children, not for anyone.
Alito and Roberts targeted expansiveness. Prohibitions, they warned, ought be plain to the least common denominator. Obscenity, a belligerent near enough to free speech to require a cordon sanitaire, requires Miller v. California's test to be identified — patent offense to prevailing standards, lacking merit of any kind, serving only a prurient interest. The problem is that you or I can truncate for the sake of conversation, but the legislature cannot. "The terms 'deviant' and 'morbid,'" Alito probed, "are not defined in the statute, and California offers no reason to think that its courts would give the terms anything other than their ordinary meaning." Yee's bill wasn't law; it was an incantation studded with magic words.
Then there is the matter of why violence is not implicitly poisonous to the mind. "Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children's literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite 'deviant' or 'morbid' impulses." Why do networks omit a film's sex scenes but pick shootouts for the teaser played a week in advance? . . . if you have to ask, reassess the obvious.
Thomas dissented because his reading of the Constitution yields nothing to guarantee communication with young people. "The historical evidence shows that the founding generation believed parents had absolute authority over their minor children," he wrote. "It would be absurd to suggest that such a society understood 'the freedom of speech' to include a right to speak to minors." But as Thomas contemplated the world producing the central document, he appeared to conflate mores with deliberate legislative intent.
After all, if citizens under the age of twenty during the late eighteenth century lacked exposure to forms of expression, couldn't it have been due to, say, the absence of such? What percentage of colonial children and teenagers were literate? Of those who could read, outside of schooling, how many libraries were within their reach? What speech was madly trying to get at them? Mass-media amenities — radio, periodicals, film, television and the internet — have enjoyed an acceptance in American households nearing ubiquity. Thomas would have us believe that this is so, and responsible parents allow their children to use the computer or watch TV, because it hasn't been outlawed there yet. "[I]t does not follow," the majority added in footnote, "that the state has the power to prevent children from hearing or saying anything without their parents' prior consent."
Breyer's claims are perhaps more readily apprehended if you simply climb the legal scaffolding and grasp the shaky, arbitrary conclusion behind it. "In my view, California's statute provides 'fair notice of what is prohibited.'" Right off the rails and into the determination of exactly how and where violence "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors."
Is there any title, past or present, that could be identified to, like pornography, serve only a specific biological appetite? Now, if we all know the meaning of "titillate," we may also wish to consider that we frame compulsions for violence in terms of concupiscence (hence the distinction in law) or hunger (tellingly nonsensical). But say there was such a game, on which Yee and I could agree. All right: where is the state's compelling interest to keep it away from a 15-year-old? Whatever research Breyer adduced, the majority noted, most of it is external to the case — but not least, in Breyer's own words, "Experts debate the conclusions of all these studies." Then where in the world is the rush?
One thought arising from the jurisprudential finality: what new medium, what novel pique of culture, will be pursued next? If it's inevitable, a second thought should calm: law and constitution have yet another precedent.