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. Justice Kennedy is a true First Amendment champion, but his opinions in this area seem to have more to do with his own belief regarding the virtues of free speech and personal autonomy. The ratifiers’ view of free speech was quite similar, but their understanding should control if it conflicts with Justice Kennedy’s. Justice Thomas’s dissent in today’s case raised an interesting possible conflict.
Thomas argued that the original understanding of the First Amendment does not protect speech or expression to minors that their parents did not want them to receive. Justice Scalia takes him on (in footnote 3), noting the critical distinction that the California law was enforced through criminal sanctions. I don’t know enough to referee that fight. My sympathies as a parent resonate with Thomas, (I do not indulge my daughter’s “right” to talk to her mother and me in a disrespectful way—on those rare days when she is not perfect), but those personal sympathies cannot trump the proper original understanding of the First Amendment—whatever that is.
Justice Alito, with Chief Justice Roberts, concurred in the judgment only. They voted to strike down the law as written, but would permit legislatures more latitude to regulate the new medium that allows the user to control “the actions of a character who guns down scores of innocent victims,” which he argues may be shown in time to be qualitatively different than “reading a description of violence in a work of literature.”
The more liberal justices split 3-1 on the result, but most of their First Amendment decisions seem dictated by whether they personally like the type of speech restrictions at issue. In a separate opinion today, all four voted to uphold Arizona’s outrageous attempts to “equalize” campaign speech. Justice Breyer has a narrow view of the First Amendment, and so his votes to uphold the Arizona and California laws today are at least predictable.
Ginsburg’s and Kagan’s vote to approve the California law seems even more situational and results-oriented than Sotomayor’s. Last Thursday, Ginsburg and Kagan joined a strong dissent that argued that a Vermont law restricting speech related to pharmaceutical marketing should be upheld. The argument they joined last week was that commercial speech was due less First Amendment protection. Today, they join Scalia in arguing that violent video games deserve the highest level of protection. There are ways to try to square that apparent contradiction, but I suspect the basic difference in their minds was that Big Pharma is bad and Big Video is good.
The ultimate conclusion is that we are ruled more by justices acting as platonic guardians rather than the few trying to apply the rule of law—even if they sometimes reach the same result.