Video games decision a win for student speech rights, advocates say

WASHINGTON, D.C. — While Monday’s landmark violent video games decisionwas a clear win for the video gaming industry, student journalism advocates arealso calling it a victory for students’ free speech rights.

The 7-2 decision showed the Supreme Court is reluctant toexpand the definition of unprotected speech, even where minors are concerned.

Frank LoMonte, executive director of the Student Press Law Center, saidMonday’s decision implicated the rights of students because it hinged onwhether minors could rent or buy certain video games.

“The most important takeaway is a broadrecognition that young people have First Amendment rights and it is going to bevery difficult for the government to just take those away even if there arevery sympathetic facts to a case,” LoMonte said.

The case, Brown v.Entertainment Merchants Association, stemmed from a 2005 California lawauthored by State Sen. Leland Yee that banned the sale or rental of violentvideo games to minors.

In a majority opinion by Justice Antonin Scalia, the Courtheld that video games fall under the scope of the First Amendment’s protectionand that California’s law violated the free speech rights of game distributors.

Bo Andersen, president and CEO of EMA, said in a press release that thegroup was “gratified” the decision came down in its favor, adding “there nowcan be no argument whether video games are entitled to the same protection asbooks, movies, music and other expressive entertainment.”

In his own press release, Yee blasted the decision.

“Unfortunately, the majority of the Supreme Court once again put theinterests of corporate America before the interests of our children,” he said.

The California law defined violent video games as those games in whichplayers have the option of “killing, maiming, dismembering, or sexuallyassaulting an image of a human being.” The definition only applied to games thatappealed to the deviant interests of minors, were patently offensive for minorsand lacked “serious literary, artistic, political, or scientific value forminors.”

Those provisions were based on a 1968 case, Ginsberg v. New York, where the high courtallowed states more room to regulate obscenity when children are involved. Thegovernment in that case had restricted the sale to minors of magazinescontaining nudity.

In Monday’s opinion, Scalia distinguished that restrictionfrom California’s attempt to ban violent video games, making clear that“obscenity” does not include violent expression.

Scalia wrote that “a legislature cannot create newcategories of unprotected speech” simply by determining that the speech’s consoutweigh its pros.

“The most basic principle — that governmentlacks the power to restrict expression because of its message, ideas, subjectmatter, or content — is subject to a few limited exceptions for historicallyunprotected speech, such as obscenity, incitement, and fighting words,” Scaliawrote.

The Court also found that the California lawfailed to address a compelling government interest, a requirement for the lawto pass the Court’s historical strict scrutiny test.

The state argued that the law was meant toprotect children from the harms associated with playing violent video games,citing several psychological studies. It also argued that the law was meant toaid parents in their efforts to protect their children from video gameviolence.

In rejecting both points, the Court deemedthe studies’ results “small and indistinguishable from effects produced byother media” and said the gaming industry’s voluntary rating system adequatelyassists parents in guarding children from violence.

Justices Anthony Kennedy, Ruth BaderGinsburg, Sonya Sotomayor and Elena Kagan joined Scalia’s majority opinion.Justice Samuel Alito wrote a concurring opinion that Chief Justice John Robertsjoined.

Justices Stephen Breyer and Clarence Thomasdissented in separate opinions.

Breyer wrote that the government had a compelling interest in regulatingthe games, satisfying the strict scrutiny test. He found it hard to distinguishthe case from Ginsberg.

“What sense does it make to forbid selling to a 13-year-old boy amagazine with an image of a nude woman, while protecting a sale to that13-year-old of an interactive video game in which he actively, but virtually,binds and gags the woman, then tortures and kills her?” Breyer wrote. “Whatkind of First Amendment would permit the government to protect children byrestricting sales of that extremely violent video game only when the woman —bound, gagged, tortured, and killed — is also topless.”

Thomas wrote that he believes there is no First Amendment right to speakto children without parental permission — in this case, to sell them anexpressive product.

Heard in November, the case was announced on the last day of the Court’sOctober 2010 term, keeping members of the video gaming industry, like EMA, andFirst Amendment advocates in waiting for almost seven months.

LoMonte said that students’ speech rightswere on the line in this case and that he feared a constrictive ruling wouldhave further limited student discussion.

“From ourperspective, our greatest fear was giving schools the impression that anyspeech about violence could be regulated or banned. I think a loss in this caseopened up the risk that students would be punished at school just fordiscussing violent movies or violent games or violence in the news,” LoMontesaid.

The SPLC signed onto a friend-of-the-courtbrief in the case.

Andersen and LoMonte said the current ratingsystem of video games is the best route for video game regulation that does notstifle students’ constitutional rights but does provide parents with an avenueto steer away from unwanted content.

“Video game retailers understand that theyhave a responsibility to help parents make informed decisions about the videogames they buy for their children and to ensure that children are not able topurchase Mature-rated games without their parents’ permission,” Andersen said.

LoMonte said the ability to be exposed tocertain ideas must remain intact to protect students’ rights.

“Students do have alegitimate interest in being exposed to all sorts of ideas, even extreme ones.You can educate them and you can parent them but what you can’t do is pass lawsto restrain them,” LoMonte said.

Monday marked the end of the 2010 term forthe justices. The Court will begin its 2011 term on the first Monday ofOctober.