Submitted by Shaun Spalding last modified Thu, 04/12/2012 - 11:01pm
On Monday, June 27th the Supreme Court ruled 7-2 against California’s 2005 ban on distributing violent video games to minors in Brown v. Entertainment Merchants Association. The majority, led by Justice Scalia, invalidated the law on First Amendment grounds, referencing the lack of evidence proving causation between violent behavior in children and exposure to violent video games, along with the gory and violent themes in what we traditionally consider to be children’s stories, such as Grimm’s Fairy Tales (think Hansel and Gretel baking their captor in an oven).
Justice Scalia reinforced that but for a few excepted categories such as obscenity, incitement, and fighting words, the first amendment ensures that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
The decision is being hailed as a victory for the Free Speech and the First Amendment by groups such as the Comic Book Legal Defense Fund, who take the position that the restriction is an outgrowth of the same panic over the effect of comic books on children, and that both attempts to regulate the media that minors are able to consume are based in pseudoscience and fears over child welfare.
The Entertainment Merchants Association was even supported by Amicus Briefs by the MPAA and RIAA, as the relationship of the first amendment to children affects all types of content children can consume, including movies, music and books..
Others see it as an opening to eventually declaring net neutrality rules unconstitutional. Justice Scalia writes that, “Whether government regulation applies to creating, distributing, or consuming speech makes no difference.” Blogger Susan Crawford predicts that this statement will likely come up in future communications litigation, with telecom carriers using this idea to argue that any government-placed restriction on the use of their communications channels, including nondiscrimination regulations, is a violation of the First Amendment.
Game developers say that this ruling will most likely not change their development process, because "extreme violence is not a recipe for creative or commercial success,” and that the industry is shaped by direct feedback from gamers (and parents of gamers), rather than by government regulation.
The case is an important in reinforcing the broad reach of our first amendment, which the Supreme Court finds to apply even to some government restrictions on distributing video game content to children.