Monday, June 27, 2011
From Justice Scalia's majority opinion in today's case involving violent video games, Brown v. Entertainment Merchants Assn.:
California's argument would fare better if there were a longstanding 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 exmaple, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." . . . . Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake . . . . In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface . . . . And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. FN4
FN4: Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny[.]
It is interesting that Justice Scalia cites Canto XXI of Inferno right in the text of the opinion. This is the fifth bolgia of the Eighth Circle, where those guilty of barratry are submerged in boiling pitch, while demons (in this case, the Malebranche) torture them in various horrible ways. Barrators are public servants and officials who sold their offices for money. And barratry in civil law is the bringing of legal claims that are totally meritless, for purposes of harassment. It isn't in Justice Scalia's opinion, but in addition to the cultural and intellectual differences between the Inferno and Mortal Kombat, it may be worth noting that Dante meant to condemn the barrators, not to celebrate them.
UPDATE: Commenter Elena reminds me that there is a rather violent video game (rating 18, just like the rating challenged in Brown) of Dante's Inferno. In the video game, of course, it is the player who can, in his considered discretion, "punish the damned, or absolve them as they are defeated."