Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, June 28, 2011

Violent Video Games and Constitutional Madness

The Supreme Court continued its flight into First Amendment madness yesterday when it held that retailers had a First Amendment right to sell or rent violent video games to minors. Justice Scalia's majority opinion maintained that categories of unprotected speech such as this could only be justified if they are "historically unprotected" or meet a compelling state interest test. In this respect the Court continues its unprecedented foray in United States v. Stevens where the Court invented the same approach in the process of invalidating a statute proscribing depictions of animal cruelty. Prior to that, it is clear that the Court's categories of unprotected speech were created by balancing the interests in free speech against order, reputation, intellectual property and the like. Last year in Stevens, the Court announced without a scintilla of historical support that this process was "dangerous."

This approach matches the interpretive approach of none of the justices who signed the opinion. Kennedy, Ginsburg, Sotomayor, and Kagan do not confine themselves to historical approaches in other areas of the Constitution or even in other pockets of free speech interpretation. Even Scalia has purported to be bound by the original understanding of the Constitution, but the historic test he employs calls for a long historic tradition that may or may not stretch back to the framers. Moreover, it is doubtful that any of the unprotected categories as now defined match the understanding of the framers. Scalia suggests for reasons he does not disclose that it is permissible to make changes within unprotected categories without a historical basis, but not to create new categories of unprotected speech (despite our history of doing so).

Without a justification in hand for the historical test, the Justices turn to the impossibly high standards of the compelling state interest test. This is an appropriate test for those with a First Amendment fetish and those who are blind First Amendment cheerleaders, so blind that they cannot distinguish between violent video games for children and literary, artistic, scientific, or political speech. In applying the test, the Justices think there is not a sufficient showing of harm despite the conclusions of the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychology, the American Psychological Association, the American Psychiatric Association, and the American Medical Association.

Justice Clark once said that there is no war between the Constitution and common sense. Well the Supreme Court has declared such a war and there is no end in sight.

cross-posted at religiousleftlaw.com

comments open, but I will probably not have time to respond


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We agree, I think, that a better freedom-of-speech regime would distinguish, more than ours does, between (shockingly) violent video games and those forms of speech and expression that are connected more closely with democratic self-government. That said, I think it is clear that the Court's decision is entirely consistent wtih (and, indeed, is compelled by) the relevant precedents. To have ruled the otherway would have required either (a) unusual, even for the Court, levels of disingenuousness, or (b) overruling lots of cases. No?

Posted by: Rick Garnett | Jun 29, 2011 1:42:54 PM

Rick (and Steve), you both know much more about speech law than I do, and from what I know, I agree with Rick that precedent pointed squarely in the direction of striking this CA provision down. That still leaves the question of choosing between Justice Alito's circumscribed opinion and Justice Scalia's much broader majority opinion. Just on that particular point, which opinion do you find more convincing?

Posted by: Marc DeGirolami | Jun 29, 2011 4:14:37 PM

No, the Court would have merely needed to abandon the methodology of
Stevens which was not compelled by any prior case, was directly
contrary to Ferber, and was arguably dictum. Or it could have
followed Breyers approach regarding children. I think it is the
children angle that explains Justice Roberts failure to follow the
approach he authored in Stevens.

Posted by: Steve Shiffrin | Jun 29, 2011 4:43:47 PM