06/29/2011 12:38 pm ET Updated Aug 29, 2011

Children, Violence and the First Amendment: Video Games in the Supreme Court

The U.S. Supreme Court has ended its current term with a major decision supporting the First Amendment rights of children. In Brown v. Entertainment Merchants Association, it upheld lower court rulings that a California law restricting the access of minors to violent video games was inconsistent with the First Amendment.

The 7-2 decision displayed some unusual alignments of the justices. Of the Court's five more conservative justices, one wrote the majority opinion, one joined that opinion, one wrote and another joined a concurring opinion, and one dissented. Of the four more liberal justices, three joined the majority opinion and the fourth dissented.

The majority opinion by Justice Antonin Scalia, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, focused on the applicability of the First Amendment with respect to video games, violence, and children. Finding it entirely applicable in each case, the Court concluded that California's law required strict scrutiny and could not survive that test.

Video games, noted the Court, resemble "the protected books, plays, and movies that preceded them" in that they "communicate ideas -- and even social messages." We may face challenges in "applying the Constitution to ever-advancing technology," but this does not alter "the basic principles of freedom of speech and the press."

"The most basic of those principles," the Court added, is that, in general, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Although the Court has recognized some "well-defined and narrowly limited" historical exceptions such as obscenity, legislatures are not free to add "new categories of unprotected speech."

In particular, depictions of violence are fully protected by the First Amendment. The category of obscenity is limited to "depictions of sexual conduct" that meet specific criteria. It "does not cover whatever a legislature finds shocking."

The fact that the California law was limited to minors did not save it. Speech that is not obscene with respect to adults may be "obscene as to youths" but this is a matter of adjusting "the boundaries of an existing category of unprotected speech" to take age into account. California, in contrast, had created "a wholly new category of content-based regulation" limited to "speech directed at children."

This was "unprecedented and mistaken." Noting that it has long recognized the First Amendment rights of minors, the Court insisted that the government's "legitimate power to protect children from harm... does not include a free-floating power to restrict the ideas to which children may be exposed."

The California law thus imposed "a restriction on the content of protected speech," subjecting the law to "strict scrutiny." To pass that demanding test, a law must be "justified by a compelling government interest and... narrowly drawn to serve that interest."

But California, the Court noted, "acknowledges that it cannot show a direct causal link between violent video games and harm to minors." Whatever the effects of such games on "children's feelings of aggression," moreover, "those effects are both small and indistinguishable from effects produced by other media." As for the aim of assisting parents, not all parents want to restrict their children's access to violent video games. The law could not survive strict scrutiny.

Justice Samuel Alito, joined by Chief Justice John Roberts, wrote a concurring opinion. "The experience of playing violent video games," he suggested, "just might be very different from reading a book ... or watching a movie." He would have struck the California law down as unconstitutionally vague, but it was premature, he argued, to rule out the possibility that another such law might pass constitutional muster.

Justices Stephen Breyer and Clarence Thomas filed separate dissents upholding the law for different reasons. Breyer argued that the law was important to parents and that the evidence concerning the effects of video games could reasonably be deemed by a state legislature to justify restrictions on the access of minors. In case of doubt, he argued, the Court should defer to legislative judgment.

Justice Thomas provided a more radical dissent. "The practices and beliefs of the founding generation," he argued, "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." Given parents' "absolute authority over their minor children," children had, and have, no First Amendment rights.

The majority was unconvinced, however. Its opinion represents a welcome reaffirmation of the First Amendment rights of children.