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

WASHINGTON, D.C. — While Monday's landmark violent video games decision was a clear win for the video gaming industry, student journalism advocates are also calling it a victory for students' free speech rights.

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

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

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

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

In a majority opinion by Justice Antonin Scalia, the Court held that video games fall under the scope of the First Amendment’s protection and 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 the group was “gratified” the decision came down in its favor, adding “there now can be no argument whether video games are entitled to the same protection as books, 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 the interests of corporate America before the interests of our children,” he said.

The California law defined violent video games as those games in which players have the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” The definition only applied to games that appealed to the deviant interests of minors, were patently offensive for minors and lacked “serious literary, artistic, political, or scientific value for minors.”

Those provisions were based on a 1968 case, Ginsberg v. New York, where the high court allowed states more room to regulate obscenity when children are involved. The government in that case had restricted the sale to minors of magazines containing nudity.

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

Scalia wrote that “a legislature cannot create new categories of unprotected speech” simply by determining that the speech’s cons outweigh its pros.

“The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words,” Scalia wrote.

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

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

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

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

Justices Stephen Breyer and Clarence Thomas dissented in separate opinions.

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

"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-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. “What kind of First Amendment would permit the government to protect children by restricting 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 speak to children without parental permission — in this case, to sell them an expressive product.

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

LoMonte said that students’ speech rights were on the line in this case and that he feared a constrictive ruling would have further limited student discussion.

“From our perspective, our greatest fear was giving schools the impression that any speech about violence could be regulated or banned. I think a loss in this case opened up the risk that students would be punished at school just for discussing violent movies or violent games or violence in the news,” LoMonte said.

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

Andersen and LoMonte said the current rating system of video games is the best route for video game regulation that does not stifle students’ constitutional rights but does provide parents with an avenue to steer away from unwanted content.

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

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

“Students do have a legitimate 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 laws to restrain them,” LoMonte said.

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

news, Washington D.C.

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