Supreme Court Protects First Amendment Rights for Entertainment & New Media in Brown v. EMA Decision

June 28, 2011
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“California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.”
Justice Antonin Scalia in the majority opinion on
Brown v. EMA

CBLDF is delighted to be celebrating the resounding victory in Brown v. EMA that came with yesterday’s 7-2 Supreme Court decision, a victory that dismantles the same pseudoscience that fueled the attacks on comic books in the 1950s.

Brown v. EMA (formerly Schwarzenegger v. EMA) pertains to a California law that restricted the sale of violent video games to anyone under age 18, citing that violence is harmful to minors. Previous decisions in the case ruled the law unconstitutional under the First Amendment. California appealed these decisions to the Supreme Court.

CBLDF filed an amicus brief on the case, arguing that the law was unconstitutional and a response akin to the moral panic that fomented around comic books during the 1950s. Justice Scalia’s majority opinion both referenced the CBLDF amicus brief and called to mind past concerns over comic books:

Many in the late 1940s and early 1950s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate….But efforts to convince Congress to restrict comic books failed.

Justice Scalia further discussed the actions of psychiatrist Fredric Wertham, who led the crusade against comic books in the 1950s. Wertham failed to convince Congress, but an attempt was made to pass a law not unlike California’s law regarding video games, a law that targeted comic books:

The crusade against comic books was led by a psychiatrist, Fredric Wertham, who told the Senate Judiciary Committee that “as long as the crime comic books industry exists in its present forms there are no secure homes.” …Wertham’s objections extended even to Superman comics, which he described as “particularly injurious to the ethical development of children.” …Wertham’s crusade did convince the New York Legislature to pass a ban on the sale of certain comic books to minors, but it was vetoed by Governor Thomas Dewey on the ground that it was unconstitutional given our opinion in Winters, supra.

With this in mind, it becomes easy to see how draconian legislation such as the California law disputed in Brown v. EMA can be extended to comic books and other media. If California were allowed to censor violence in video games based on specious evidence, what’s to keep the state from extending the same regulation to comic books, movies, or other media? From Justice Scalia’s decision:

California’s argument would fare better if there were a long-standing tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed.

Several sources have weighed in on this landmark decision, including the LA Times, USA Today, and CNET. Gamasutra analyzed the decision, including the dissent from Justices Thomas and Breyer. You can read CBLDF General Counsel Robert Corn-Revere’s response here.

NPR covered the decision with a brief report, which was followed by comprehensive discussion on KQED’s Forum, involving Leland Yee, the author of the legislation; Christopher Ferguson and Douglas Gentile, who both research the effect of violent media on children; law professor Margaret Russell; and Rich Taylor with the Electronic Software Association:

The First Amendment Center relates that the decision came with high drama, noting the importance of the choice of Justice Scalia to write the opinion:

…Since justices announce their decisions in the order of reverse seniority, that meant that either of the two most senior justices, Antonin Scalia or Chief Justice John Roberts, would be the author of the video-game decision. (As chief justice, Roberts is regarded as having the most seniority, no matter how long he has been on the Court.)

That choice—Scalia or Roberts—was a good omen for First Amendment advocates. Scalia had been sharply critical of the California video-game law during oral argument, and Roberts has written some of the Court’s most important pro-First Amendment decisions in recent years, protecting controversial speech ranging from funeral protests to animal-crush videos.

It turned out to be Scalia who was the bearer of bad news for the California legislators and supporters of the law. In his booming voice, Scalia took apart the statute almost line by line…

Ken Paulson, president of the First Amendment Center, broke down the key points of the decision in a blog for Yahoo News:

• Entertainment is protected by the First Amendment: The Court notes that although video games are primarily intended for entertainment, “we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”

• Sexual and violent content are viewed differently: America has a long tradition of limiting depictions of sexual acts, the Court notes, but has never been as restrictive about violence. “Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore,” Scalia wrote. “Grimm’s Fairy Tales, for example, are grim indeed.”

• States can’t target emerging media: As new technologies are invented, states cannot target them for restriction because of concern about the potential influence on children. In this case, for example, the Court concluded that the interactive nature of video games did not warrant government action any more than a compelling book would.

• The science doesn’t support censorship: The Supreme Court dismisses research that violence poses a threat to children, saying that it doesn’t prove that violent video games cause children to act aggressively.

• Disgust alone can’t justify limits: Justice Samuel Alito did some of his own research into video games and shared his findings with his colleagues. “Justice Alito recounts all of these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression,” Scalia wrote.

The First Amendment Center also took a look at Justice Stephen Breyer’s dissent in the case:

In his opinion for the Court, Scalia wrote that historically depictions of violence have never been regulated by government, citing fairy tales such as “Snow White,” “Cinderella” and “Hansel and Gretel” and modern-day TV cartoons. But Breyer said the case “is ultimately less about censorship than it is about education.”

Calling interactive video games “excellent teaching tools,” Breyer said that education “is about choices. Sometimes, children need to learn by making choices by themselves. Other times, choices are made for children … in my view, the First Amendment does not disable government from helping parents make such a choice here.”

But Scalia turned the parental rights argument on its head in the concluding lines of the majority opinion. He said the California law “abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent games are a harmless pastime.”

In contrast, Justice Clarence Thomas dissented on the grounds that children do not have the same First Amendment rights enjoyed by their parents. Richard Zuckerman took a look at Justice Thomas’s comments on the American Constitution Society blog:

The vigor of Justice Scalia’s defense of children’s First Amendment rights was exceeded by Justice Thomas’s dissent, which would hold that children have no First Amendment rights to read, view, or listen to anything absent their parents’ consent. “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,” Justice Thomas wrote. The startling breadth of Justice Thomas’s opinion prompted a rebuke from Justice Scalia — apparently directed not only to Justice Thomas but to those who might embrace his views with missionary zeal, “And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well,” Justice Scalia wrote. If the California law were sustained, “it could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent.

In their analysis of Justice Breyer’s dissent, The First Amendment Center concludes:

Ultimately, today’s ruling pitted concern against certainty — concern over what violent video games may do to children vs. the majority’s demand for “certainty” that the games are harmful. The decision rests on the majority’s refusal to create another exception to First Amendment free-speech protection, even for those under age 17, without historical precedent — such as exists for libel or child pornography or sexual imagery — or credible scientific proof of direct harm to children.

The Brown v. EMA decision ultimately resists California’s attempt to establish a new category of unprotected speech—violence. It also reinforces the First Amendment rights of minors and entertainment media, which includes the comic books we love so much. This is another important victory in CBLDF’s fight for the First Amendment rights of the comics community!

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