At oral argument, one “originalist” had kidded the other. “What Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” Justice Alito asked.
Justice Scalia gave his response on Monday, writing for a majority of the Supreme Court in Brown v. EMA, and striking down, on First Amendment grounds, California’s law making it a crime to give or sell a violent video game to a minor.
While the decision broke no new ground in First Amendment jurisprudence, it is destined to be oft-cited because of the strength of its articulation of two principles: First Amendment protections do not depend on the nature of the medium. And the limited exceptions that the Court has recognized to the First Amendment -- Justice Scalia noted obscenity, incitement, and fighting words -- cannot be transmuted into other areas.
“[V]ideo games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection,” Justice Scalia wrote. “[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary’ when a new and different medium for communication appears.”
Justice Scalia noted that obscenity is one of very few, limited exceptions to the First Amendment. The Miller/Ginsberg rule—which holds that the First Amendment does not preclude making it a crime to give a minor non-obscene sexual material that is “harmful to minors” -- cannot be expanded to make it a crime to give a minor violent material. Miller/Ginsberg simply adjusts the boundaries of “an existing category of unprotected speech,” the Court held. California’s attempt to use Miller/Ginsberg as a basis to restrict minors’ access to violent video games seeks “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”
The Court rejected California’s argument that the regulation should be allowed to protect minors. “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”