2011 Jun 28 peach

Guy Blade Guy Blade---02:12:00

Amendment One
As many may be aware, I have a mild interest in constitutional law and periodically read court decisions which spark my interest. Today, the decision in BROWN v. EMA was handed down. For those unaware, this case is about a law, passed in California, which would make it illegal for certain "violent video games" to be sold or rented to minors. The court decided 7-2 that the law was an unconstitutional restriction on free speech and the main opinion did have some nice gems. From a footnote:

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in explo_e with a "d" (so that it reads "explode") than with an "r" ("explore"). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

The decision itself was quite broad and made light of the fact that any new medium quickly becomes the apparent corrupter of the young and that the First Amendment care not for about the medium and will not lightly allow the restriction of speech based on content.

More interesting than the main decision, to me at least, were the Alito concurrence and the dissents. The Alito concurrence was enlightening as it pointed out that this case could have easily reached the same immediate result (the striking down of the California law) without reaching the broad First Amendment question. In fact Alito argues the standard line that video games are a rapidly evolving medium in which research is unavailable and where this sort of broad decision may be premature. Instead, he favored deciding the case on a vagueness problem with the initial statute. It seems that the fact the SCOTUS decided on the broader ruling when a narrower one was available to it is a good sign for the treatment of video games as a serious literary and critical medium. The Alito concurrence also has the obligatory references to both RapeLay and the Super Columbine Massacre RPG that must, by law, be included in any discussion of video game violence.

The Thomas dissent causes me greater concern, however. In its opening paragraph, it includes this line:

The practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians.

While there may be truth in his statement regarding the beliefs of the founders, I do not think that a strict constructionist view is a useful place to begin a discussion of modern speech rights--especially as they relate to minors (but then, I've never had a lot of patience for the strict constructionist arguments). The court noted in the main opinion the inherent flaws with this argument related to religious expression or access. Additionally, they noted the lunacy of expecting explicit parental permission for minors to be able to access the (admittedly curtailed) political speech rights that they have.

Mostly, I think it is a good sentence to show exactly where Thomas is from a "core values" perspective; though, Thomas does spend great length explaining the intricate and complex nature of the parent-child relationship, as it was evolving during the Revolutionary period. Of course, such a discussion assumes that, at the moment the First Amendment was ratified, the entire cultural state was carved into the back of it as forever immutable addenda.

Breyer also was the sole other dissent. His dissent focused somewhat on how the statutes here were constructed to be very similar to other statutes about obscenity (which had been ruled constitutional), yet this statue was being struck down on vagueness. Although he uses this stance to argue that this restriction was constitutional, in my mind, it mere raises questions about the obscenity statutes that have been allowed to persist so long with justification as flimsy as "everyone has always thought this stuff is bad, so shall it remain".

Breyer also included a rather exhaustive list of studies of video game violence as an appendix. Based on it, and the court record, he seemed to believe that there was a possible causal link between violence in video games and in children and hence believed that the law, as constructed, should have passed scrutiny.

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