Supreme Court Rules on Violent Video Games

Todd Gaziano / June 27, 2011

Today’s Supreme Court decision in which it struck down California’s law restricting the sale or rental of violent video games to minors (PDF) is an important First Amendment decision that is not subject to a simple liberal/conservative breakdown, but the more interesting contrast may be between the votes in this case and another decision today and last Thursday.

Seven justices voted to strike down California’s violent video game law, but the seven justices split into two camps.  Justice Scalia wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan, holding that video games qualify for First Amendment protections like other literary devices such as books, plays, and movies, and that content-based restrictions on video games are subject to invalidation unless they pass the Court’s strict scrutiny test.  The Court concluded that the law cannot pass this test because it is both over- and under-inclusive, e.g., noting that violent children’s cartoons were not covered.  Although Justice Scalia believes that the original public meaning of the First Amendment protects depictions of violence (as evidenced by his questions at oral argument and his current footnote 4), I doubt the other four justices care much about the original understanding.  (more…)