Private: Brown v. EMA: What did Justice Scalia Think About Mortal Kombat? Did he Enjoy it?

By Richard M. Zuckerman. Litigation partner in the New York office of SNR Denton US LLP. Mr. Zuckerman was counsel for several amici curiae in Brown v. EMA.

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.”

Concurring in the judgment, Justice Alito (joined by the Chief Justice) wrote that he would hold the statute void for vagueness, but made clear that it made all the difference to him that James Madison had not played video games, and that he would therefore be receptive to a more precise statute. “When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book….”

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.”

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” wrote Justice Scalia. Perhaps his having done both enabled him to write, “But these cultural and intellectual differences are not constitutional ones.”

[image via Wikimedia Commons]

Constitutional Interpretation, First Amendment, Supreme Court