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Supreme Court Decision: The Dissenters' Side
Supreme Court Decision: The Dissenters' Side
June 27, 2011 | By Kris Graft




Out of nine U.S. Supreme Court Justices, two voted in favor of a California law that would place new restrictions on the sale of violent video games to minors. The law was struck down in a 7-2 vote, the Court revealed Monday morning, on grounds that it violated the First Amendment.

Justice Clarence Thomas was one of the dissenters. He argued that when the U.S. Founding Fathers created the First Amendment, they did not intend for free speech to be directly "spoken" to children.

In that regard, Thomas -- whose opinion mainly consisted of an analysis of parenting and children's decision-making abilities over the course of U.S. history -- disagreed with the court's decision that the law violated free speech.

Justice Stephen Breyer also dissented, calling the act only a "modest restriction," and pointed out inconsistencies with how the government handles forms of mature content in other forms of media.

Below are the highlights from Thomas and Breyer, extracted from the full 92 page ruling [PDF]. (Notably, the Entertainment Software Association claimed that despite the dissent, the ruling would hold up against future attempts at similar legislation.)

Thomas: The Act Is Not A Free Speech Violation

"...The founding generation [founders of the U.S.] understood parents to have a right and duty to govern their children’s growth. Parents were expected to direct the development and education of their children and ensure that bad habits did not take root."

"...This conception of parental rights and duties was exemplified by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters constantly and often gave specific instructions about what the children should do..."

"The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty."

"In light of this history, the Framers could not possibly have understood 'the freedom of speech' to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood 'the freedom of speech' to include a right to speak to children without going through their parents."

"As a consequence, I do not believe that laws limiting such speech -- for example, by requiring parental consent to speak to a minor -- 'abridg[e] the freedom of speech' within the original meaning of the First Amendment."

"'The freedom of speech,' as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.

Breyer: Law Doesn't Overstep Parental Boundaries Any More Than Obscenity Laws

"...The special First Amendment category I find relevant is not (as the Court claims) the category of 'depictions of violence,' but rather the category of 'protection of children.' This Court has held that the 'power of the state to control the conduct of children reaches beyond the scope of its authority over adults.'"

"What, then, is the difference between [obscenity trials] Ginsberg and Miller on the one hand and the California law on the other?..."

"There is, of course, one obvious difference: The Ginsberg statute concerned depictions of 'nudity,' while California’s statute concerns extremely violent video games. But for purposes of vagueness, why should that matter? Justice Alito argues that the Miller standard sufficed because there are 'certain generally accepted norms concerning expression related to sex,' whereas there are no similarly 'accepted standards regarding the suitability of violent entertainment.'"

"...But there is no evidence that is so. The Court relied on 'community standards' in Miller precisely because of the difficulty of articulating 'accepted norms' about depictions of sex. I can find no difference -- historical or otherwise -- that is relevant to the vagueness question. Indeed, the majority’s examples of literary descriptions of violence, on which Justice Alito relies, do not show anything relevant at all."

Breyer: The Act A "Modest Restriction"

"California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. ... All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17."

Breyer: Statute Would Not Have Adverse Affect On Other Media

"...Nor is the statute, if upheld, likely to create a precedent that would adversely affect other media, say films, or videos, or books. A typical video game involves a significant amount of physical activity. ... And pushing buttons that achieve an interactive, virtual form of target practice, while containing an expressive component, is not just like watching a typical movie."

Breyer: Scientific Evidence

"There are many scientific studies that support California’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time,have found that increased exposure to violent video games causes an increase in aggression over the same period."

"Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games inquestion are particularly likely to harm children."

Breyer: "Serious Enforcement Gaps" With Ratings System

"The majority [of Justices] points to a voluntary alternative: The industry tries to prevent those under 17 from buying extremely violent games by labeling those games with an “M” (Mature) and encouraging retailers to restrict their sales to those 17 and older. ... But this voluntary system has serious enforcement gaps."

"...As of the FTC’s most recent update to Congress, 20 percent of those under 17 are still able to buy M-rated video games, and,breaking down sales by store, one finds that this number rises to nearly 50 percent in the case of one large national chain."

"And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today’s broad ruling reduces the industry’s incentive to police itself."

Breyer: "Serious Anomaly In First Amendment Law"

"...The majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games."

But 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? 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?

Breyer: Case Is "Not About Censorship"

"This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work."

"Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children -- by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here -- a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children."

"For these reasons, I respectfully dissent."


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