What we learned from the Supreme Court’s video game violence First Amendment decision

Sometimes, a cigar is just a cigar — but a Supreme Court opinion is never just a Supreme Court opinion. It is rich with subtext, laden with clues (some of them false), replete with portent about where the law is heading. Before Justice Antonin Scalia finished reciting Monday’s 7-2 majority opinion in Brown v. Entertainment Merchants Association — striking down California’s ban on the sale of violent video games to minors — Court-watchers already were semiotically parsing the four Brown opinions (including one concurrence and two dissents) like Indiana Jones with a treasure map.

From the perspective of student journalists, the opinion is most noteworthy for what it did not do. Proponents of the California statute were asking the Court to create a new category of “obscene as to minors” speech that includes not just explicit sex but explicit depictions of violence. While it would have been a tremendous leap from pulling “Mortal Kombat” off the toy-store shelves to censoring a student’s magazine story about suicide, you can bet that at least some schools would have gone there. Principals rarely are constitutional scholars — their legal knowledge is painted in broad, inexact strokes — and their takeaway from an adverse ruling in Brown would likely have been, “Violent speech isn’t protected by the First Amendment.”

Beyond that, the fractured rationales offered in Brown — the Scalia five-vote majority, Justice Samuel Alito’s two-vote concurrence, and Justice Clarence Thomas’ and Stephen Breyer’s dissents — provide the clearest illumination in at least two decades as to how the Court views the law of the First Amendment where minors are concerned. Here is what we now know, and what we still don’t:

  • It is unclear just how much of the Scalia majority’s rationale was based on the rights of kids to view and receive information, as opposed to the rights of merchants to provide it. Critics of the Brown ruling are denouncing it as a special-interest giveaway to the video gaming industry, but the majority’s language really seems to be more about the rights of the listener than the rights of the speaker. It quotes at length from an obscure 1975 Supreme Court ruling that struck down an ordinance banning nudity at drive-in movies that might be seen by passing children. In that case, Erznoznik v. City of Jacksonville, the Court extrapolated from its seminal Tinker ruling, about children’s right to speak freely in school, that “minors are entitled to a significant measure of First Amendment protection… and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” The “right to receive information” has been inferred into the First Amendment as an adjunct of the right to speak, but its contours have never been distinctly defined by the courts. Brown is one of the clearest indications yet that (a) the First Amendment includes a “right to listen” as well as a right to speak and (b) that right extends even to the youngest audience member.
  • Breyer will not be a predictable First Amendment vote where technology-aided speech is concerned. Breyer’s decision to break with the liberal wing with which he normally votes — putting him in unaccustomed alignment with ideological opposite Thomas — was telegraphed by his concurring opinion earlier this term in Phelps v. Snyder. There, while siding with the majority that found demonstrators’ hateful anti-gay remarks protected by the First Amendment, Breyer went out of his way to characterize the opinion as applying only to in-person picketing and not to speech aired on television or posted to the Web. Breyer’s dissent in Brown dropped the other shoe. He clearly is discomforted by what he sees as the greater dangerousness of modern forms of communication and entertainment, writing at one point, “[P]ushing buttons that achieve an interactive, virtual form of target practice (using images of human beings as targets), while containing an expressive component, is not just like watching a typical movie.”
  • Because of Breyer’s unpredictability, it is difficult to extrapolate how the Court will deal with the inevitable appeal when a student brings a First Amendment challenge to punishment under one of the numerous “cyberbullying” statutes enacted by state legislatures in recent years. (Side note: We may get our answer sooner than we think, as the ACLU has just announced it will challenge Tennessee’s newly enacted ban on “emotionally distressing” online speech as unconstitutionally over-broad). Yale law professor Emily Bazelon, whose Sunday New York Times column presciently anticipated the outcome in Brown, suggests that the Scalia majority may portend constitutional difficulty for some of the broader-reaching cyberbullying bans. But one of the majority’s joiners, Justice Sonia Sotomayor, exhibited a First Amendment blind spot where students’ online speech is concerned during her time as a Second Circuit appellate judge. It is not at all clear, even after Brown, that there are five votes on this Court to protect students against even the most egregious overreaching into their off-campus, online lives.
  • Thomas really is “stuck in the ’80s.” The 1780s, that is. In a dissent breathtaking for its lack of adherence to settled Supreme Court precedent, Thomas once again reiterated his conviction that students are pieces of furniture who have no more constitutional rights than a footstool does. This position is rooted in an analysis of the historical status of constitutional rights at the time the Bill of Rights was enacted. But as impressive as Thomas’ grasp of history is, it also is highly selective. It is true that Jefferson and Madison never contemplated that 16-year-olds would be playing video games that simulate shooting a human victim — because in their day, 16-year-olds were out shooting and killing actual living people as combatants in the Revolutionary War. The notion that a teenager needs government protection because of his inability to handle cartoon violence would have been laughable during the period upon which Thomas claims to be drawing.
  • And finally, we were reminded that — especially when it comes to politics — timing truly is everything. Poor Jerry Brown, California’s governor as of January, inherited not only a $25 billion budget deficit from predecessor Arnold Schwarzenegger but also this case. As the chief of state of California, his name automatically was substituted for Schwarzenegger’s as the lead defendant in the case, and by “luck” of timing, it will be he and not Schwarzenegger whose name goes down in the history books as the advocate for an unconstitutionally overbroad, anti-free-speech law in which he had no involvement. (Perhaps fortunately for him, this case will never be referred to as “the Supreme Court’s Brown decision” — that distinction already being taken.)