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."