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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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Jim Perry
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"Social scientists, for example, have found causal evidence that playing these games results in harm."

Really? That's news to me. I wonder what evidence that is and what kind of harm?

Ken Nakai
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Sounds like he's grabbing at straws. Maybe he should consider extending the requirements of the law (to restrict the sale to minors) to the movie industry. I wonder how he'd vote when they start to throw their lawyers at it? :)

Ali Afshari
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"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."

If that is the case, then why was so much time and money wasted on this? I don't feel that because the founding generation didn't foresee a future where entertainment would be focused directly at children, that now the GOV has to step in.

And I know that I'm not really adding anything new, but Breyer's comments about the 13 year-old and the nudie mag is just ridiculous. Both the mag and the violent game should be impossible for the child to purchase on his own...if he did manage to get the items, it is the store's error and responsibility for hiring an employee that doesn't properly check age.

Ardney Carter
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"If that is the case, then why was so much time and money wasted on this? I don't feel that because the founding generation didn't foresee a future where entertainment would be focused directly at children, that now the GOV has to step in."

It's good to keep in mind that the dissenting opinions are arguing very specifically against the GROUNDS used for attacking the legislation namely, that it is unconsitutional ON ITS FACE (caps for emphasis since I can't italicize). That makes an enormous difference and is the whole reason that Thomas spends so much time establishing what the framers of the consitution would have considered to be the inherent limits of "free speech". Thomas' position is that the legislation cannot be ruled unconstitutional on its face as the industry claimed in its challenge since the 1st amendment never provided a right for minrs to have access to any speech without their parent's prior consent. He is dissenting on these grounds and makes a fairly compelling case for it (IMO). He leaves the door open to other challenges to the law, but not this particular one.

In other words, he is not arguing that "GOV has to step in" but is instead saying that they are not PREVENTED from stepping in based solely on the 1st Amendment.

I can't count on Breyer's dissent since I haven't gotten to it yet.

[edit] That should have read "cant' comment on" instead of "count on" I'm a bit out of it today.

Ali Afshari
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Ardney, thanks for the clarification. I can see the rationale behind what Thomas is saying, although the interpretation that they can attempt to enforce the legislation because they aren't prevented from stepping in still worries me.

jin choung
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i'm all about free speech (and a hardcore lefty) but in this regard, i agree with the dissenters.

why should there be a difference here between violent video games (which would violate some community's standards of decency) and pornography? you CAN restrict minor's exposure to porn so why not objectionable or violent video games?


the problem is that they're trying to use the law to cover up for a failing in commerce. the problem is that if the games can be restricted like porn, they WILL be placed behind black curtains like porn and many retailers like walmart will refuse to stock such "adult material", newspapers will refuse to run ads for such games, etc etc etc.

if there was no commercial STIGMA against "adult materials", if they did not get an immediate penalty in the marketplace, then it would be totally fine and consistent to treat violent (or sexual) video games like porn.

the problem here is that the court is trying to mitigate the commercial effects by an exertion of law and creates standards that are inconsistent and absurd.

in order for scalia to be consistent, he'd have to make porn just as accessible.

and actually, i'm fine with that.

personally, i don't think violent video games do any harm to sane kids. i also don't think that porn does any harm to a normal kid who is old enough to actually be looking for it. i've consumed plenty of both when i was a kid and am no worse for wear.

and if the issue is about parental control (as it rightly is), then it doesn't really belong in the realm of laws. parents should just exercise their authority over their kids that they already have a right to.


but as it is, with violent video games on one side and porn on the other... it's just a mess. ugh.

scott anderson
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Violence in video games would be more similar to violence or sexual content in film. Most of the issue is that games should not be held to a different standard than other media (film, music, tv, novels, comics, etc.) because of nebulous claims like "games are more harmful because they are interactive." Explicit pornographic games have special classification like NC-17 movies and are restricted. I just don't get the violent games = pornography argument, even in the case of very graphic games. Torture porn movies get widespread theatrical release and are just as bad (if not worse) than the most violent game I can think of.

jin choung
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right. actually, i was just looking at it from the angle that "censoring material that children can access" is not new (as it is in porn) and THEREFORE, it should not be a federal case to apply it with games.

i.e. attacking it as a children's access issue. i was just apriori, for the sake of my argument, saying that extreme violence is as bad as porn.

and actually, i guess i kinda just used that shortcut cuz for me, i don't feel that porn (again, for kids [let's face it, boys] that are old enough to have an appetite for it) is particularly harmful. my take is not that violent games are just as bad as porn... it's the converse/inverse position that porn is no more harmful than violent video games.... : )

but yeah, i wouldn't disagree that we should treat game content with the same restrictions as movies, lit, etc.

Ali Afshari
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Jin, messy indeed. You make an interesting point about Scalia remaining consistent by making porn just as accessible. I don't think the recent decision makes the games any more accessible than a porn shop that allows minors to purchase their wares.

People also interpret things differently. Should the Sears underwear insert from the Sunday paper be removed because some depraved people can be aroused by the images? Politicians need to stay out of the role of determining what is acceptable/unacceptable by societal standards and parents need to remember that what they consider offensive/inappropriate may not be the general consensus.

Tom Baird
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Echoing Scott Anderson, I believe that Games should be limited similar to their entertainment peers (film, music, tv, books). When it's not illegal for a child to purchase Saw, it should not be illegal for him to purchase Mad World.

It is not creating an inconsistency with regards to porn, but a consistency with regards to other entertainment mediums. Porn in video games is still classified as porn, and regulated as such.

If they feel that Violence should be classified under the same terms as pornography, they should do so consistently across all mediums and not cherry pick whichever mediums they are currently opposed to.

jin choung
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" Porn in video games is still classified as porn, and regulated as such."

is it? i dispute that.

there are vanishingly few pornographic games (if you don't count hot coffee) and the imports and porn company novelty products simply sell themselves as porn and regulate themselves pretty strictly.

but if activision (and not vivid entertainment [porn company]) came out with a game that featured explicit sex (say it's an episode in a LA noire like game), it would get the MA rating or PEGI21 or whatever other rating there is but it wouldn't automatically be curtained off as porn.

and in light of this decision (and i'm not sure whether the case is about violent games only or any and all possible games - in protection of the MEDIUM OF GAMES - en toto) doesn't it mean that there is NO WAY to regulate even pornographic games?


again, i'm of the very lax opinion not that violent games are as bad as porn but that porn is as innocuous as violent games - so interpret my off-handed equation of the two under that light. not a condemnation of the one but an acquittal of all....

(alas... i'm just talking about run of the mill sex porn here... under the rubric of "i can't unsee that", i would personally be in favor of banning two girls one cup, donkey shows and other abominations... and yeah, i recognize that i'm still on the slippery slope, just moved it down [or up depending on your pov])

jin choung
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right. and as i clarify in the thread, i'm just speaking on the issue of using laws to restrict content from minors.

it shouldn't be a 1st ammendment thing because we already have precedent of restricting porn from kids. if that's constitutional, then restricting other content from kids would be as well....

i wasn't arguing that violent games are "as bad" as porn.

and right, as you say, what is ok for one person is not ok for another so how can laws work that kind of stuff out to the satisfaction of all? better to just have "free speech" and let the consumer decide.

Tom Baird
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I'm no lawyer, so I'm relying on my interpretation and explanation of others, but all definitions and rulings I could find referred to obscene material, regardless of medium. I don't see how it being an interactive video would make it any less a pornographic video. Much less whether it was made by Vivid or Activision.

One thing I found quickly:

The original basis for the case is the current Obscenity law, which is not specific on the platform that is obscene, and doesn't include violence. If you can find a case in video games that was clearly pornographic and exempt from pornography laws, but otherwise the law doesn't state otherwise.

I honestly think it's an odd societal norm that a dismembered body is less dangerous than a naked body to children(according to the law). But a child can legally watch Saw, legally go purchase a very gory book, and buy a violent cd, and so he should legally be able to go pick up the latest GTA or Manhunt.

If there are cases of pornography, I think it should be treated as such as well, regardless of developer or media format.

My main opinion is that Games should be treated as other media with regards to protected speech, and this ruling keeps it on the same level as it's media peers(pornography is restricted, violence is not).

Whether or not Violence itself is bad for children and should be legally restricted is it's own can of worms, and should be tackled as violence in media, not violence in games. The same goes for pornography not being negative for children as well. If the content is good or bad, it's good or bad regardless of method of delivery.

Ken Nakai
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Actually, there's porn is usually firewalled from other movies and the like because the box art sells the content...and that box art isn't for minors. Granted, some games' cover art might be questionable but the vast majority that I've seen usually isn't. In the end, it's up to the store owner/clerk to ensure they don't SELL the actual content to minors.

But then we go into the GameStop/parent buying for the kid anyway aspect of that whole thing and it all falls apart.

Honestly, like it's been echoed above, games should be treated just like movies. Slap a rating on it and put the responsiblity back in the hands of the parent where it's supposed to be. You wouldn't buy a movie that's rated NC-17 or R for your kid (and shouldn't) but if you do, you're the problem, not the movie industry that made it.

Bobby Dennie
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Just a point of fact: Were Activision to make a game with explicit sex, it's ESRB rating would be AO (Adults Only) and it would not be curtained off--it simply would not be carried by ANY retailer. I can't speak for all retailers, but Gamestop policy is to not buy or sell original copies of San Andreas due the hot coffee issue--and that wasn't even explicit.

Status Quo; if a parent is angry their child was sold an M-rated game, they take it up with the company, and the company fires the highly expendable associate. If a law were put in place to actually fine the company that made the sale, the risk would be too high (especially for whatever company sold M-rated games to 50% of minors) to carry M-rated games. That's a major hit to retailer's profits and developer's markets. With production costs vastly greater than porn, M-rated games would not survive being sold from behind a curtain. No doubt developers/publishers could find a way to adapt, but the vast decline in profitability in games rated Mature would see a proportional decline in development in such games ... and not to mention a great deal of what should be "free speech" being cut for a Teen rating.

Bobby Dennie
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Double Post :(

scott anderson
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Ahhh yeah, I agree with you there, just didn't get the point you were making. There are more complex cultural issues going on with how harmful porn is. Now kids have super easy access to porn anyway (much easier than violent video games :) )

Michael Meyer
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From James Madison's original Introduction of the Bill of Rights:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

"Shall not be abridged". Pretty clear. Whether selling a video game counts as speech/writing/publishing of sentiments would be a slightly better angle to dissent from.

Why they didn't keep Madison's wording is baffling.

jin choung
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but this was in regards to minors. there are all kinds of first ammendment protections and freedoms that kids are restricted from - mostly under the banner of "protection".

Cody Scott
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minors dont have every right under the constitution, an 8 year old can not purchase a colt 1911, even if he could afford one, but this is still in the realm of parents need to be parents and stop wanting the government to take care of their children.

Ron Dippold
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They are right in that it's somewhat inconsistent with existing decades old censorship law. Those need to go too. Leave it up to the parents.

Cody Scott
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Studies funded by anti video game groups are not scientific.

Keith Patch
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"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."

I always love hearing this... You expose someone to something violent/aggressive/competitive in nature they will react, it's pretty standard. I just find it funny because they aren't saying anything about movies, TV, or sports which are all more accessible than games.

jin choung
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kind of what i was saying:,8599,2080289-1,00.html