Video games given full First Amendment protection

The Supreme Court today voided a 2005 California law that banned the sale of "violent video games" to minors. A 7-2 majority of the Court found the law violated the First Amendment, affirming that free speech applies to digital content and new media as much as to traditional literature.

Larry Downes
Larry Downes is an author and project director at the Georgetown Center for Business and Public Policy. His new book, with Paul Nunes, is “Big Bang Disruption: Strategy in the Age of Devastating Innovation.” Previous books include the best-selling “Unleashing the Killer App: Digital Strategies for Market Dominance.”
Larry Downes
8 min read

The U.S. Supreme Court today reaffirmed the principle that the First Amendment protects free speech in the digital age, rejecting a 2005 California law that severely restricted the sale of "violent" video games to minors.

The statute had been blocked from taking effect by lower court rulings in suits brought by industry representatives. Following today's decision by a 7-2 majority of the court (PDF), the law is now a dead letter.


The decision was highly anticipated, and the result entirely expected.

The decision in Brown v. EMA is the second in as many weeks from the high court protecting digital content under the First Amendment. Last week, the court invalidated a Vermont law (PDF) that prohibited the "sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors." The state had argued that the information was not a form of speech but a "mere commodity," with "no greater entitlement to First Amendment protection than 'beef jerky.'"

But the court rejected that narrow view of information. The data whose use Vermont sought to limit constituted facts about what drugs were being prescribed, and facts are clearly protected under the First Amendment. As the court concluded, "Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs."

"Obscenity" definition not extended to violence
In today's decision, California had hoped to convince the court to extend the definition of "obscenity" to include depictions of violence in video games. (States are permitted to regulate obscene content despite the First Amendment.)

California tried to shoehorn a vague definition of "violent video games" into the already narrow obscenity jurisprudence. Today's decision reflects a complete rejection of that effort, dooming California's law and similar statutes enacted by other states.

From the outset, legal scholars saw California's argument as a Hail Mary pass. Obscenity is a narrow category of speech dealing with extreme sexual content and one of a very few exceptions to the general rule that the First Amendment prohibits content-based restrictions.

During a long period in the 1960s and 1970s in which the Supreme Court struggled to define the limits of its obscenity rule, it was clear the justices were never entirely comfortable with the category and were careful to limits its use.

Even before the advent of video games, the court had consistently rejected efforts to treat violence in film, literature, and even comic books as a related category of speech lacking "serious literary, artistic, political, or scientific value," a key criteria in the obscenity exception.

For example, in U.S. v. Stevens, a case decided last year, the court rejected efforts by law enforcement agents to prosecute the operator of Web site selling videos depicting animal cruelty. (Animal cruelty itself, including the acts depicted in films, can be punished, but not the sale or possession of the films.)

Writing for today's majority, Justice Antonin Scalia noted that "in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." The holding in Stevens, he said, "controls this case."

But unlike the federal statute involved in the Stevens case, California's legislature sought only to ban the sale of violent video games to minors. That limit was not enough to save the law. Even minors, the majority noted, have significant if not full First Amendment rights.

Quoting a 1975 case involving nudity at drive-in movie theaters, today's majority agreed that "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

New technologies, new moral panics
Brown v. EMA is the latest in a long line of efforts to curb or ban new technologies under the guise of protecting minors from dangerous content. New media, including video games, extend metaphors of "realness" and fidelity in expressing ideas and entertainment. As each new innovation reaches mainstream markets, it is invariably met with a kind of moral panic that often translates into outrage and prohibition.

But the First Amendment, the majority concluded forcefully, is indifferent to the medium in which protected expression is communicated. "California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors," the justices said.

Similar moral crusades accompanied the rise in popularity of earlier media, including movies, radio, television, and comic books.

The court devoted several pages to the history of these efforts. In each case, violence depicted in new formats was described as more intense and more lifelike than previous technologies. That difference became the basis for efforts by state and local governments to single them out for prohibition. In each case, the courts held firm to the principle of the First Amendment and rejected the ban.

Even without legal support, moral panics over new media can have long-lasting effects. Fear of censorship, for example, has left a legacy of self-regulation in each of these media, which can often be more severe and inflexible than what the government was trying to do. Few film distributors will touch a film rated "X" by the Motion Picture Association of America, though no law requires them to do so or even to uphold the restriction.

The video game industry itself created the Entertainment Software Rating Board, which, as the Federal Trade Commission noted, "outpaces the movie and music industries" in restricting the access of minors to content rated "mature."

Comic books had, until recently, one of the most severe self-censoring bodies, the Comics Code Authority. The CCA was created by publishers and distributors in 1954, when state and federal governments were threatening to restrict or ban wildly popular horror and crime comics.

The code forced leading publishers out of business altogether and remained a powerful force for self-censorship even as comic book readership moved from young children to young (and even not-so-young) adults. This year, recognizing at long last the transformation of its audience and standards of acceptable content for children that have long since evolved from the 1950s, the CCA disbanded.

California also tried to distinguish video games from earlier media innovations by pointing out that unlike violent literature, video games are "interactive." But interactivity, the justices replied, is a form of all literature. The court here quotes Richard Posner, a federal appellate judge and a leading First Amendment scholar. In a similar case decided in 2001, Posner wrote that the more interactive literature is, the better it is. "Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own."

Confusing correlation with causation
The court was also dismissive of psychological evidence introduced by California that purported to show a link between playing violent video games and violent behavior by minors. As I wrote last year when the case was argued, the studies that demonstrated that link were deeply flawed and at best showed correlation, not causation, between the games and minor behavioral changes.

The justices were considerably less generous in their reading of the studies, which have been rejected by every court to consider them. "They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."

The studies themselves found no difference between violent video games and those, such as Sonic the Hedgehog, (rated E for Everyone) that the rejected law would not have restricted. Indeed, the studies cited found similar effects from watching Bugs Bunny cartoons, or from being shown a picture of a gun. "The consequence," the court said, "is that [California's] regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it."

Concern over technological improvements to come
Justice Samuel Alito, writing for himself and Chief Justice Justice Roberts, agreed that the California law was unconstitutional but disagreed with the approach taken by the other five Justices in the majority.

"In considering the application of unchanging constitutional principles to new and rapidly evolving technology," Alito wrote in a concurring opinion, "this court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time."

Alito was troubled by the "vividness" of video games over traditional literature and worried that future technical innovations, including 3D and sensory feedback, could make them even more dangerous. "And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The court acts prematurely in dismissing this possibility out of hand," he wrote

But the majority decision did nothing to preclude future efforts to prove a strong and compelling link between playing video games and violent behavior by children.

In the end, Alito seemed mostly disappointed that the majority didn't share his moral outrage at the content of some video games, which he spent several pages describing in lurid detail.

As the majority notes, "ironically, Justice Alito's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech--whether it be violence, or gore, or racism--and not its objective effects, may be the real reason for governmental proscription."

Justices Clarence Thomas and Stephen Breyer filed separate dissents. Justice Thomas argued somewhat incoherently that since parents have absolute control over their children, the First Amendment simply does not apply to minors. Justice Breyer argued that restricting the sales of violent video games to adults was only a "modest" restriction on speech.

For some reason, Justice Breyer also prepared a 15-page appendix listing competing and inconclusive studies on violent video games, none of which was cited by attorneys representing California in any case.

California Gov. Jerry Brown, who defended the statute while serving as the state's attorney general, had no comment on today's decision, according to a spokesperson.

Defenders of the First Amendment can celebrate a strong victory in today's decision. But if history is any guide, the ill-considered California law won't be the last effort by state governments to restrict or ban future innovations in media. As technology makes the experience of information more interactive and more vivid, the attacks will only increase in frequency and volume.