Supreme Court Overturns California Ban on Selling Violent Video Games to Minors

This morning the Supreme Court, in a 7-to-2 decision (PDF), overturned California's law prohibiting the sale or rental of violent video games to minors. The majority opinion by Antonin Scalia affirms that video games are a constitutionally protected form of expression and declines to recognize a subset of them as a category of speech that, like obscenity and incitement, can be restricted without violating the First Amendment. Since the Court refuses to "create a wholly new category of content-based regulation that is permissible only for speech directed at children," Scalia writes, California's law has to survive strict scrutiny, which it cannot do:

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest....California cannot meet that standard.  At the outset, it acknowledges that it  cannot show a direct causal link between violent video games and harm to minors....

The State’s evidence is not compelling.  California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to  violent video games and harmful effects on children. These studies have been  rejected by every court to consider them, and with good reason: They do not  prove that violent video games  cause  minors to  act  aggressively (which would at least be a beginning).  Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.".... 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.

Furthermore, Scalia notes, such research does not provide grounds for distinguishing between video games and other forms of entertainment:

The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.  

Acknowledging the legitimacy of concerns that some violent entertainment is inappropriate for minors, Scalia nonetheless reminds us that "even where the protection of children is the object, the  constitutional limits on governmental action apply."

The opinion is here (PDF). I discussed the case in a column last November. More on violent video games here.

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  • Arnold Schwarzenegger ||

    BULLSHIT!

  • Almanian||

    HEY, THEY GOT ONE RIGHT! GOOD JOB, SUPREMES!

  • ||

    SCOTUS also overturned the Arizona campaign finance law, so that's two right. Stopped clock, etc.

  • sevo||

    Andrew,
    Just checked the IJ web site and they show this as awaiting decision. Did the decision happen?

  • ||

    Yes, it happened.

  • ||

    SCOTUS almost always rules in favor of free speech.

  • sevo||

    "Congress shall make no law..."
    Seems pretty clear to me.
    Oh, and and the article didn't state, but can we presume the 9th continued its nearly unbroken string of missing the dart board entirely?

  • ||

    It's almost like you need a court sitting full-time just to unscrew what the 9th screws up.

  • ||

    Jobs!

  • ||

    SCOTUS upheld a 9th Circuit ruling that the video games law was unconstitutional, so no.

  • sevo||

    "SCOTUS upheld a 9th Circuit ruling that the video games law was unconstitutional, so no."
    Thanks for the clarification (surprised icon).

  • ||

    The 9th did get the Arizona elections law wrong, so we can still laugh at them.

  • ||

    Oh no, they got one ruling right, so we can't. I think this is how it works.

  • JD||

    The 9th occasionally gets one right, usually when Kozinski is on the panel.

  • Richard Stengel||

    Hey Servo....how dare you quote those Eighteenth Century slaveowning white upper class male landownwers who knew nothing about miniskirts and Lady Gaga?

  • alan||

    Hey now! Them fighting words! To even associate mini skirts with the hideous, vomit projectile that is Lady Gaga, I suspect you may need your testosterone checked.

  • ||

    I don't understand all of these "exception tests" that the courts keep inventing. How on earth are they able to invent law out of whole cloth like that. They've appended a whole string of subordinate clauses to "Congress shall make no law..." without any input from the people. Presumably one should need an amendment to the constitution to change the meaning or add caveats.

    In this case we are afforded free speech as long as restrictions survive "strict scrutiny". Win The Future! Where the heck do they derive that from "Congress shall make no law.."? I don't see a tiny "unless" scrawled in there on the original document...

  • ||

    Without exceptions to the 1st, it would protect threats, perjury, and fraud.

    A big part of the problem is that the Bill of Rights was never intended to apply to a sovereign with police powers.

  • np||

    Actually, with the exception of threats, it would not at all because those constitute actions not just speech.

    Perjury or fraud = breaking a contract, when you obliged to tell the truth to someone.

    Otherwise, lying in any other circumstance would not constitute an act, on an expression that does NOT have to be acted upon by anyone else.

    So no exceptions would work out just fine. It makes no sense currently anyways, since stuff like fraud isn't treated as a 1st amendment case, and there are irrational exceptions like obscenity (whose punishment itself is obscene)

  • Joel||

    The case was styled Brown V. Entertainment Merchants Association. This means that the government, listed first, was the petitioner. The government petitioned the Supreme Court overturn the lower courts (the 9th) ruling. So, in this case the 9th circuit got this one right.

  • T||

    Wait, so Scalia said FOR TEH CHILDRENZ!1! doesn't override the Constitution? Sweeet. Can we get him to think about affecting interstate commerce some more?

  • ||

    I'm sorry Maria! She tricked me!

    Oh wait, this isn't about Arnold's divorce?

  • Alan Vanneman||

    Buy Nino a cup of coffee! A "grande," that is, not a "vente." And just a "drip." If he wants some of that latte/cappucino shit, he'll have to pay the difference himself.

  • Joe M||

    Wow. The supremes have had a decent run of pro-first amendment rulings in the last year or two. They've still horribly fucked up on fourth amendment issues, but you take what you can.

  • ||

    SCOTUS rulings in favor of free speech goes back much longer than two years...

    You're right on the Fourth Amendment rulings.

  • ||

    They've also had some nice Sixth Amendment rulings, thanks to the Ginsburg-Scalia-Thomas-Souter-Stevens-Kagan-mostly Sotomayor group.

  • ||

    From the end of Breyer's dissent:

    "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 the more than reasonably fear pose only the risk of harm to those children"

    Yeah, it's a shame that, I dunno, parents can't BE PARENTS, and that they need the government to help them out.

  • Restoras||

    Yes. Not too mention that every game receives a rating, including a clear description of the rating contents, if only the parent is motivated to put down the remote/fork/keyboard/tablet/cellphone and accept that responsibility.

  • sevo||

    "...helping parents make such a choice here..."
    He really wrote this, didn't he?
    "Helping" someone make a choice by *outlawing* something!
    Breyer:
    'Here, let me help you with that choice.
    Chose wrong and you go to jail.
    Does that help?'

  • ||

    Well, the law still let parents buy it for the kids directly.

    Incidentally, that led to an absurd situation whereby non-emancipated minors who had a kid wouldn't be allowed to buy it for themselves, but could totally buy the game for their baby.

  • mr simple||

    disable government from helping parents make such a choice

    Yeah, it's not really helping them make a choice, as much as forcing this decision upon them, now is it? No word on the parents who don't want help.

  • Joe M||

    It's nauseating in the extreme. I thought the liberals were the free speech guys? They keep failing hard.

  • Fartnoise||

    Any like-minded political group (i.e., liberals) that establishes "speech codes" on college campuses and virtually invented the concept of "political correctness" can in no way be considered the "free speech guys."

  • mad libertarian guy||

    Gotta love those "free speech zones" on college campuses.

  • Anonymous Coward||

    Dear Justice Stephen Breyer:

    GO. THE. FUCK. AWAY.

  • Mo||

    So does this mean minors can now purchase/attend rated R and rated X movies? I don't see how the government can prevent minors from attending R/X rated movies and still be consistent with this ruling.

  • Skr||

    X rated would fall under the obscenity exclusion would be my guess.

  • SIV||

    Unlike depictions of "sexual conduct," Scalia said there is no tradition in the United States of restricting children's access to depictions of violence, pointing out the violence in the original depiction of many popular children's fairy tales like Hansel and Gretel, Cinderella and Snow White.

    Hansel and Gretel kill their captor by baking her in an oven, Cinderella's evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, Scalia said.

    "Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore," Scalia added.

  • AlmightyJB||

    Yeah, I've never understood the whole: it's ok if kid's watch shows of people getting shot in the face, but god forbid they see a naked behind. That whole puritan thing I suppose.

  • alan||

    When I saw the original Clash of the Titans in my early teens, the only thing I could recall from the movie a mere few weeks later to describe to some friends was a most excellent ass from the bath scene. It is still the only thing I really recall in any detail except for an annoying mechanical owl. Oh, and Medusa was hot (frizzy hair always does it for me).

  • ||

    They showed COTT in one of my high school classes. The teacher held a manila folder over the TV during the nude scenes.

  • alan||

    Young Sugarfree points out to the teacher that according to the first edition of AD&D Deities & Demi-Gods that the Kraken was of Scandanvian origin.

    This being in the mid eighties, she spouted, 'Where did you get THAT vile book, young man? There will be no Satanism in this classroom!'

    Funny, it was the junior high library where we found a series of books (Time Life maybe) on the occult, and my friend Mark Self (serving time for murder in the same prison as Charles Manson, was a practicing Satanist, attempted rituals with my copy of the Necronomicon -- paper back edition, interesting aside story) learned about Alister Crowley, Knights of the Golden Dawn, The Hell Fire Club, and sodomy. Of course, the later I never tried, but Mark later became a gigolo who killed the millionaire who he was sponging down. Stole the man's BMW and his parrot, made his way cross country as a fugitive, lived on Fort Bragg in the forest area for a few weeks until he was caught.

    If you ever heard of this case, yep, that was one of my best friends.

  • alan||

    Oh, and as bad as all that sounds, it was the Citadel, that really fucked him up.

    That's a story for another time, but consider Lords of Discipline an advance copy preview.

  • ||

    You've never tried sodomy? -- Am I reading that correctly?

    What's the side story with the Necronomicon?

  • alan||

    I could never find time to fit sodomy in my schedule. I hope I didn't miss out on anything. I always imagined it would be like going to the Yes 90125 tour.

    There was a shits and giggles attempt at publishing the Necronomicon back in the 70's. The advertisement was everywhere in the fanzine mags, National Enquirer and Omni. In the 80's it came out in paperback so I snagged a copy.

    It was written as a series of spells to open gates to a dark dimension with dire warnings that you could never go back to the life you lead before if you repeated the incantations. Self was the kind of person who took it seriously. I got it because I'm nuts about Lovecraft.

  • alan||

    Oh, you wanted his side story. He became a pyrokinetic after reading it, and believed the contact with other dimensi gave him power to affect fire. I admit a few weird things happened in my presence where a camp fire bloomed suddenly, but I suspect that had more to do with the devil music, Van Halen's first album, we were listening to, and another guy getting a liquor bottle too close to the source flame. Self thought it was a fire elemental from the Necronomicon.

    Whose to say who was right, huh?

  • ||

    Like pudding, there's always room for sodomy.

  • ||

    Andromeda was indeed a heavenly body.

  • Philosoraptor||

    Sex and violence are commensurate? News to me.

  • dunkel||

    "The Shortage of Gore" sounds like a bad x-rated film...'release this!'

  • CE||

    Hansel and Gretel kill their captor by baking her in an oven, Cinderella's evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, Scalia said.

    Hmmm... time for some remakes! Disney's been holding out on us.

  • Fluffy||

    The government doesn't prevent anyone from attending R or X rated movies.

    On paper, the movies rating system is a voluntary agreement between the studios, the theatre chains, and the newspaper chains.

  • Mo||

    The ratings for movies are voluntary, much like the ratings for video games, but I think the government prevents theaters from allowing minors to see those films.

  • Fluffy||

    No it doesn't.

    The ratings system originally came into existence because the studios were afraid that laws MIGHT be passed attacking their content, but because the studios caved so abjectly that threat was never actualized.

  • ||

    Technically the ratings system came about in 1968 as a relaxation of the Hays Code, which arose in 1934 by a similar process to what you describe.

  • Ted S.||

    The Hays code came about before 1934, but Will Hays actually let the studios get away with a lot of stuff. It was only when the Catholics got in a huff and got Joe Breen installed as head of the Code Office that the Code started to get enforced with a vengeance.

  • ||

    No, that would be giving the MPAA ratings board statutory authority which would bring up a host of 1st amendment concerns.

  • ||

    ""The government doesn't prevent anyone from attending R or X rated movies."""

    Prevention isn't really the issue. Even with the law the government can't prevent a store from selling to a minor. What is the issue, and it's also why the movie ratings isn't an issue, is punishment. If your kid sneaks into a rated R flick, no one is charged with a crime.

  • GSL||

    Isn't the harm of exposing children to violent video games dwarfed by the harm done by raising them in California?

  • ||

    Breyer dissent, no surprise, he's not a free speech fan, he likes existing law.

    Thomas dissent, also little surprise, he's a big fan of free speech for adults, but he doesn't really think that minors have any rights independent of their parents. (See also strip search case.)

    Alito and Roberts concurrence, those two, like Breyer, are less free speech friendly and more "pragmatist" likely to uphold a law. Nice that they did affirm; unsurprising that they chose a more narrow basis.

    The others, also unsurprising. The non-pragmatists are good on free speech absolutism (lost Thomas because of kids), and Kennedy is very pro-free speech, even if otherwise pragmatic on criminal issues.

  • Fluffy||

    I don't understand how they lost Thomas because kids are involved.

    This is a restriction on adult speech on the basis of the claim that that speech is aimed at kids.

    I'm used to the idea that Thomas thinks minors have rights that the state need respect, but it's pretty clear here that the speech of children is not what is at issue.

  • robc||

    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.

    That is the gist of Thomas' argument.

  • Fluffy||

    That's idiotic.

    To possess free speech, I have to be able to simply speak with no particular object and if minors hear me, tough shit.

    If we took Thomas seriously, the state should possess the power to stop me from putting up a political poster where it's visible to the public, because minors might see it. "Shouldn't parents who hate libertarianism be able to prevent their children from hearing about it? You have no right to speak to minors without going through the minors' parents, after all."

    If one parent can decide that they don't want their child to play violent video games, why can't another parent decide that they don't want their child to know about the existence of the Libertarian party?

  • robc||

    I dont disagree with you, just pointing out his argument.

    But yeah, I think you would have to torture his reasoning to allow public flyers. Im sure he would make some sort of distinction, but I dont get it.

  • Fluffy||

    Oh OK, sorry about that.

    I think I get angrier than usual when Thomas is involved because I'm just so disappointed in him.

    I expect Breyer to be an ass, and even Alito and Scalia on occasion, but with Thomas it's always a big letdown.

  • robc||

    with Thomas it's always a big letdown.

    Except he is consistent on children's issues, so was no surprise when I saw his dissent.

  • ||

    I think he would say that parents have the right to keep the kids from seeing those flyers.

    Remember, he's also somehow completely against the entire regime of FCC censorship of the airwaves (see his separate opinion in FOX v. FCC), despite THE CHILDREN having a chance to see that stuff.

    One thing with Justice Thomas, he almost always comes down 100% one way or the other. He doesn't really do middle ground. You have a 100% unadulterated right, or you have none.

  • ||

    I mean, that parents have the power to keep children off the streets and from seeing the flyers, so the flyers can be posted since parents have a way around it. Just like parents have a way around being strip-searched, even though both ways around are impractical.

    The flyers doesn't have to be a hypothetical, he's already gone further in FOX v. FCC.

  • robc||

    parents have the power to keep children off the streets and from seeing the flyers

    But dont parents have the same power to keep children out of video game stores?

    If the child is on the street, can the flyer handerouter (technical term) be barred from handing it to children?

    Could I be barred from handing a jury nullication flyer to a 17 year old entering the courthouse?

  • robc||

    Like with alcohol sales, could I be required to card anyone under 30 to make sure they are at least 18?

    On the other side, alcohol and tobacco sales are banned to those under 21/18. Not sure this is greatly different. And you better not tell me that alcohol isnt free speech.

  • ||

    Yeah, it's weird. Justice Scalia, as is his wont, goes out of his way to tweak the dissenters-- and Alito's concurrence-- in his opinion. He cites a case that contradicts Thomas (not that Thomas cares about stare decisis) but also attacks Thomas for lack of citations for the "no rights for minors" bit.

  • nicole||

    Thomas must not be thinking clearly here. Since children can only be understood as the property of their parents, what about parents who want their children to get their ass down to the store and bring home a copy of the latest violent video game for daddy to play? Surely, parents have the right to make decisions about what their minor children must or must not do!

  • robc||

    In the 70s (and maybe into the early 80s), my Dad would send me to the store to buy cigarettes for him.

    Exactly once a cashier didnt want to sell to me and I said they were for my Father and she went ahead.

  • Anonymous Coward||

    So...lock'em up in the basement until they're 18? Send them to be raised by Amish/Buddhist monks? How does one prevent their offspring from witnessing any and all objectionable materials?

  • ||

    Scalia absolutely eviscerates Thomas in a footnote on page 7 (page 9 of the PDF):

    JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken towithout their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that thepromoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children fromhearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admitpersons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporalpunishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made crimi-nal to admit a person under 18 to church, or to give a person under 18 areligious tract, without his parents’ prior consent. Our point is not, as JUSTICE THOMAS believes, post, at 16, n. 2, merely that such laws are “undesirable.” They are obviously an infringement upon the religiousfreedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’sspeech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control,
    uninvited by the parents, over a child’s speech and religion (JUSTICE
    THOMAS cites none), and in the absence of any justification for such
    control that would satisfy strict scrutiny, those laws must be unconsti
    -tutional. This argument is not, as JUSTICE THOMAS asserts, “circular,”
    ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

  • Fluffy||

    Sorry, that should have said that I'm used to the idea that Thomas thinks minors have no rights.

  • ||

    Since the law lets parents buy the stuff for their kids, he considers that enough of a safety valve.

    Also, I guess because he's looking at it from a consumer standpoint, rather than too much into the chilling effect aspect.

    I'm okay with the idea that free speech is a freedom to make two way contracts between speaker and listener. I don't like restricting minors so much, either.

  • Expat to Be||

    Thomas is usually great or wildly disappointing.
    The only two things that are guaranteed with him: he won't speak during oral argument and he almost always comes up with a different reason to get to the same end as someone else.

  • ||

    Freedom of speech does not imply the right to an audience.

  • Fluffy||

    Who said that?

    If I bought the premise that minors have no free speech rights (and I don't, but let's say that I did) I suppose I would then have to concede the justice and constitutionality of a law banning minors from possessing violent video games.

    But the law in question bans me, a non-minor, from selling or giving my video game to a minor.

    If the 1st Amendment applies to adults and not minors, then you'd have to set up your system of contraband regulations in a way that avoided setting any speech restriction on the adult side of that particular economic exchange.

  • ||

    Interactions between adults and minors are legitimately subject to state control in a way that interactions between adults are not.

  • Fluffy||

    If I conceded that, that would allow you to impose your state control over minors' speech as long as you did it in a way that does not require me to do anything to assist you at it.

    Including check the ages of potential members of my speech audience.

  • ||

    ""Freedom of speech does not imply the right to an audience."""

    I'll agree with that. But it does imply that the government can't prevent you having one if people choose to be part of that audience.

  • ||

    No one is prevented from having an audience by the law in question. All it does is exclude minors from that audience.

  • ||

    Minors are someone. But that's irrelevant. My post below explains my postion.

  • robc||

    See my example above?

    Its a legit question, but can the state really ban me from handing copies of Common Sense to High Schoolers on the street?

    Do I have to ID before handing out the jury nullifcation pamphlets (and yes, I know your view on JN)?

    Because the Thomas dissent says yes to both of those and that seems to go too far.

  • Slab Bulkhead||

    What's with the huge margins in the pdf of the decision? Are they trying to impress us with the length?

  • Almanian||

    C'mon, Slab - you know the chicks dig a "huge margin"

  • Au H20||

    Wow. The Supreme Court, long accused of being too conservative, actually gets one right and stands up for free speech. Wanna know who I bet is for once in agreement with them? The typically progressive New York Times commentators (I'm trying to decide if I'm going to stop calling them liberal or stop calling them progressive, so I'm trying out liberal first guys). Let's go to the tale of the tape:

    Jessie, from Fairfax, "The Supreme Court justices are on steroids!
    Violating minor's rights? really?
    How about a parent's right to restrict certain content from young, impressionable minds?"

    Jane48 from Ohio, "Outrageous. More of the SCOTUS' support of the corporations. Children, especially teens need violent videos like they need a hole in their heads! Next thing you know, SCOTUS will be approving the sale of guns to minors--what's to stop them, after all? I have seen children, firsthand, playing violent video games, and nothing good ever came of it. This is not a cathartic exercise, believe me--rather, it is encouraging violent behavior. Are we really looking for more candidates for these private and profitable prisons that Halliburton and Blackwater build? Hmmm, I guess SCOTUS is drumming up business for them."

    George L of New York:"I have now lost even the little remnant of respect I used to have for this esteemed Court. So, minors have the right to see any kind of violent garbage, use of guns, murder as long as a woman's breast is covered. Ask Gabrielle Giffords for her opinion.

    OK, then let's throw out the sex-related rating system for movies as well. Eight-year old children have the RIGHT to see any movies currently rated X.

    When will those judges wake up to realize that violence does a thousand times more damage to our society than sexual content? "

    Calyban, of California:"This is the insane result of an absolutist approach to the first Amendment. Just as no one has the "right" to shout "Fire" in a crowded theatre, so no one should have the "right" to sell heroin or pornography or violent video games to minors. It may take centuries to undo the mischief that these kinds of decisions will bring to this country. The sooner we get started on reversing this and other decisions like Citizen's United, the better."

    Bill Randle, of the Big A, actually supports the basis of the decision, but writes: "While there is little doubt that the law was unconstitutional there can also be little doubt that America is in the midst of a love affair with violence. We are raising a generation of children who are enamored with violence and many of them will act out those impulses as adults.

    And the argument that all video games are merely "entertainment" and people should be able to tell the difference between that and real life, let me assure you that when an impressionable child logs hundreds or even thousands of hours playing violent video games like Call Of Duty, they are gradually becoming inured to violence and losing sensitivity and compassion for others.

    I fear we are raising a generation of children who are predisposed to acting out violence."

    Frank, from Wilmington, asks us to think of the children: "Does this mean that laws on underage drinking, sales of tobacco to minors and limits based on movie ratings are also suspect?"

    And, to round out the stupid, masaNYC, presumbaly from NYC: "It's important, in the eyes of Scalia et. al. to continue to indoctrinate our youth in the absolute primacy of weapons and guns in society today. We have to make sure kids have the freedom to become de-sensitized to pain and shielded from compassion at all costs."

    Oh, did I mention that I didn't even have to cherry pick? There are 12 comments at the moment- total.

    Seriously, left wingers, what the fuck happened to you? You got kicked around for being headstrong rebels... now, you're just lame.

  • ||

    Lets not restrict this to left wingers. The right is just as bad (and worse on occasion) when it comes to "WON'T SOMEBODY PLEASE THINK OF THE CHILDREN!"

  • Au H20||

    Oh, hell yeah. I agree Andrew. On the other hand, it just seems a weird turn for the left. Nixon and his thugs would have been perfectly happy banning porn back in the day, but the hippies and the far left were supposed to be different.

    I guess they got old and had kids... but still.

  • herve villachaize||

    "Headstrong rebels..."? No, the left have always been poseur pussies.

  • Zeb||

    There were a few headstrong rebels in there. But I doubt many of them are commenting at NYT now.

  • omg||

    I'm not sure there was ever any words, whether spoken or written, that was more damaging to the country than OWH's "fire in a crowded theater" opinion. Whenever you hear someone arguing to take away someone else's rights, you inevitably hear that moronic phrase come out.

  • robc||

    There may be a few worse, but they are all OWH decisions too.

  • Hugh Akston||

    Somebody should have forcibly sterilized him. Or his mother.

    Three generations of imbecilic decisions are enough.

  • Number 2||

    Here is the headline from the ABC News article on the story:

    "Supreme Court: Sale of Violent Video Games to Minors Constitutional"

    Not that the government-imposed speech restriction is unconstitutional, mind you, but that the Constitution "allows" private individuals to sell these items.

    Is it worth pointing out that the First Amendment is an affirmative restriction on government power, not a grant of permission to private individuals to engage in commerce?

  • Hugh Akston||

    Is it worth pointing out that the First Amendment is an affirmative restriction on government power, not a grant of permission to private individuals to engage in commerce?

    No. We all know that, and the authoritarian toadies in the MSM won't understand the words.

  • ||

    When I saw that Ezra Klein column on how the Constitution was old and incomprehensible, I wondered exactly what was taught while he was getting that political science degree of his.

  • ||

    One of my many Impossibly Rich Dick Moves would be to mail that article out to the parents of every kid that applies to UCLA.

    "UCLA: IT IS WORTH IT?"

  • ||

    ""No. We all know that, and the authoritarian toadies in the MSM won't understand the words""

    Why would you just point out the MSM? If you think any other media outlet in any better, you give lip service too much credit.

    I'm not worried about the toadies that work for a 24 hours news channel, they can't do me harm. I'm concerned with the toadies in government jobs.

  • Zeb||

    Yeah, that is the dumbest headline I have seen all day. Everything that private people might do is constitutional. Forced sodomy at gunpoint is constitutional. Every state has rightly decided it should be illegal, but that has nothing to do with the constitution.

  • Anonymous Coward||

    The stupid is strong in this bunch:

    I have seen children, firsthand, playing violent video games, and nothing good ever came of it. This is not a cathartic exercise, believe me--rather, it is encouraging violent behavior.

    GTA: San Andreas was one of the most wildly popular video games of all time. Please cite relevant carjacking and homicide statistics.

    When will those judges wake up to realize that violence does a thousand times more damage to our society than sexual content?

    So Duke Nukem is more harmful to society than goatse? I would sooner force the children to play 1000 hours of Duke than have them look at goatse for 1 second.

    Ask Gabrielle Giffords for her opinion.

    I would guess she would say something along the lines of "next time I stand in front of a supermarket to gladhand the constiuents, I'm hiring Xe."

    Just as no one has the "right" to shout "Fire" in a crowded theatre, so no one should have the "right" to sell heroin or pornography or violent video games to minors. It may take centuries to undo the mischief that these kinds of decisions will bring to this country. The sooner we get started on reversing this and other decisions like Citizen's United, the better.

    Herp derp, Oliver Wendell Holmes, herp derp, Citizens United, herp derp.

  • Confused||

    But do we still hate the Supremes? Somebody tell me what to think.

    Also, how can an inanimate video game be "violent"?

  • Arnold Schwarzenegger ||

    Fuck you, asshole. I'll be back. Know how said I would kill you last? I lied. Chill out, dick-wad. No problemo. Hasta la vista, baby! I'm going to ask you a bunch of question, and I expect answers. I'm not pervert; I was just looking for a Turbo Man doll. My name is Detective John Kimbel, and I love my car.

  • ||

    the constitutional limits on governmental action apply.

    Except when teh DRUUUUUGZ are involved. Or officer safety.

  • ||

    Three generations of imbecilic decisions are enough.

    The Googloids could probably write an algorithm which could do a better job of answering the question, "Constitutional, or not?" when sicced on any newly signed piece of legislation than the doddering octogenarians we historically have relied on.

  • Sean||

    Come to think of it, we should do just that.

  • Jim||

    The WSJ comments are split about 50/50. You'd be amazed at the number of "conservatives" bemoaning this decision with such gems as, "I guess kids can buy pornography now!", and the thread winner, "how much decadant behavior will be allowed without community standards?!" (the author goes on at some length and apparently takes "community standards" to mean "the government", since, by voting, we ARE the government).

    There actually is one "who will protect the children!".

  • Anonymous Coward||

    There actually is one "who will protect the children!".

    Perhaps the two dumbasses who spawned the little crumb-snatchers?

  • ||

    You'd be amazed at the number of "conservatives" bemoaning this decision

    No, I wouldn't.

  • ||

    OK, I think the law in question is stupid, but I'm having a really hard time seeing where it runs afoul of the first amendment.

    First, there is no way that this law would prevent a video game maker from "speaking" to a consenting adult. So it's not like FCC restrictions and stuff like that which prevents anyone from receiving speech that is deemed harmful to minors.

    Second, the freedom of speech does not imply the right to an audience. The video game makers do not have a right to "speak" to minors contrary to their parents wishes.

  • Fluffy||

    Sure they do.

    If I'm simply speaking, I don't have to pay any attention to the identity of those listening to me. I in all seriousness don't have to give a shit.

    As I said above, if you could stop me from speaking because minors might hear me, why can't I stop you from engaging in any speech whatsoever - political, religious, artistic, what have you - in any public place that minors can access?

    Why can't I demand that you obtain a permission slip from every parent in the United States before you put up a billboard for any product, or a sign for a political candidate on your front lawn? You're speaking to my child without my explicit consent, fucker.

  • ||

    You appear to have missed the first point.

    This case is different because prohibiting game sales to minors does not prevent or inconvenience sales to adults.

    In cases where it's impossible or inconvenient to separate minors out from the audience, there are first amendment concerns that need to be addressed. But I don't see that here.

  • robc||

    Sure it inconveniences adults. They have to carry ID with them to the video game store in case they get carded.

    Note: I once got carded at McDonalds.

  • Fluffy||

    On Monday I can just sell or hand out copies of my game to whoever I fucking want.

    On Tuesday I have to check ID's.

    I consider that an "inconvenience".

    If an adult walks up to me and left his wallet at home, I can't safely sell or give him the game.

    I consider that a "prevention".

  • ||

    ""The video game makers do not have a right to "speak" to minors contrary to their parents wishes.""

    Go look at the first amendment again. It's not about your ability to "speak", it's about preventing the government to interfer.

    I'm not sure how it applies to the first amendment either, execpt for the part that says "Make no law". That's pretty straight forward.

    To pre-empt, I'll agree that all laws forbiding any kind of speech is unconstitional. Harm or not. If harm is a result, then you can use laws against harm to prosecute.

  • ||

    An example is the suit against Judas Priest back in the 80's. The parents thought the music drove their kid to suicide. That wasn't a free speech case, it was about harm. I disagreed with the parents' claim, but again the case wasn't about speech, it focused on the harm.

  • np||

    Nor does freedom of speech imply the right to prevent an audience. If a minor seeks out speech contrary to his/her parent's wishes, someone else should not be liable for becoming their surrogate parents

    So essentially, they do have a right to speak out to anyone who will listen. Don't conflate that with the idea of forcing others to listen.

  • Joel||

    The case was styled Brown V. Entertainment Merchants Association. This means that the government, listed first, was the petitioner. The government petitioned the Supreme Court overturn the lower courts (the 9th) ruling. So, in this case the 9th circuit got this one right.

  • Joel||

    This was in response to sevo. Dumb system didn't place it right.

  • ||

    Nowhere in the first amendment does it say you have a right to speak freely. We claim we have a right to do so based in the first amendment's restriction of government on making speech laws. There is a constitutional ban on the governments ability to make such a law. That's where many people get confused on the issue.

  • np||

    The irony about all the sudden moral outrage in the comments and editorials elsewhere: umm... so what has changed?

    Anyways, very much related to this with the same outcome, but 9th rather than SC:
    http://cbldf.org/homepage/cbld.....h-circuit/

  • ||

    in a 7-to-2 decision

    Who were the two dissenters?

  • ||

    JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent.

    I have to admit I kind of like this.

    Teenagers do need to shut the fuck up.

  • np||

    lol, more likely you'd want said person to STFU for the rest of their life.

    It's highly unlikely that someone you found annoying at 16 stops becoming annoying at 18.

    Recalling my own high school experience, people just didn't really change (except maybe freshman year, but certainly not after that)

  • ||

    Again, this ain't rocket science. An easy decision, once you recognize video games as a form of speech.

    Would a law that prohibited the sale of any printed material to a minor be Constitutional? If not, neither is a law prohibiting the sale of video games to a minor.

  • ||

    Well it seems like rocket science to two out of nine.

  • Michael Ejercito||

    Would a law that prohibited the sale of any printed material to a minor be Constitutional? If not, neither is a law prohibiting the sale of video games to a minor.


    Good point.

    If GTA: San Andreas can be prohibited to minors, so can Mein Kampf

  • Fluffy||

    Or the Bible.

  • appleaccessories||

    I like his film The Terminator 2

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