Break time

SCOTUS Modern Elite Force 7 Rulez


Today the U.S. Supreme Court struck down a California law that would have restricted the sale of violent video games to minors. This landmark ruling - and I don’t use that term lightly - goes farther than any scholarly treatise, keynote address, or impassioned blog essay in settling the case for games as a medium of artistic, and, therefore, protected expression.

For many of us, designating video games as free speech is a no-brainer. But to the broader society at large, it’s still very much an open question, just as it was when the court struck down censorship against motion pictures in Burstyn v. Wilson, a case cited in today’s ruling and widely seen as a cultural milestone.

Why is today’s ruling so important? The obvious headline is that the court “legitimized” video games today. CNN declared on its website: “Supreme Court sees video games as art.” The Washington Post ran with “Supreme Court: Books as ‘interactive’ as video games.”

These are pithy takeaway messages, but they fail to account for significant and far-reaching issues emerging from Justice Scalia’s majority opinion. While it may be refreshing to think the Supreme Court considers video games art (I'm not sure they do, actually, but more on that later), other aspects of the ruling may be more consequential.

Distinctive communication
“Like the protected books, plays, and movies that preceded them, video games communicate ideas and even social messages through many familiar literary devices...and through features distinctive to the medium.” The ruling notes that while games share characteristics with other media, they must also be seen as possessing unique discursive powers worthy of protection. This is a welcome and surprisingly nuanced view coming from a set of judges, none of whom play video games.

Hobgoblin of interactivity
Today’s ruling dismisses the notion that interactivity, by itself, presents special problems. Scalia characterized as “unpersuasive” the claim that players who participate in violent action on screen are at risk, noting that “This country has no tradition of specially restricting children’s access to depictions of violence.” Furthermore, the ruling suggests that video games cannot lay sole claim to interactivity, noting that “all literature is interactive. The better it is, the more interactive.”

Games don't cause violence
The court examined research presented by both sides and concluded: “Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology. ...Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media.”

Grandstanding fail
The ruling chastises California for selectively targeting video games while ignoring other media that routinely depict egregious acts of violence. He notes that such policies raise “serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.” In other news, California State Senator Leland Yee vows to fight on.

The Playboy argument
Today’s decision also protects video games from the tyranny of the ‘moral’ majority. While the court displayed a clear distaste for games like Mortal Kombat (and an unmistakable elitism about its artistic merits1), the majority opinion reiterated its support for individual choice and interpretation. Quoting United States v. Playboy Entertainment Group, Scalia writes, “Under our Constitution, esthetic and moral judgments about art and literature...are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

No obscene ideas
While the court recognized the State’s legitimate power to protect children from harm, “that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech...cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”

Parents rule
At various points in the majority opinion, the justices express doubts about a ‘government knows best’ approach in this case. “...punishing third parties for conveying protected speech to children just in case their parents disapprove” is an improper means of aiding parental authority. The ruling goes on to note that “Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want."


Today’s Supreme Court decision attempts to address many key issues related to video games, not simply the question “are games art?” In fact, a careful reading of Scalia’s opinion suggests that he, and perhaps others in the majority, may not consider games art at all. Scalia uses the term only once in his 18-page opinion (and it's a quote from a previous ruling). Nowhere does he argue or claim that video games should be considered art.

What the Supreme Court did say, unequivocally, today is that video games must be considered speech; and, therefore, must qualify for First Amendment protection. This, in a representative democracy influenced by powerful special interests, is a much bigger deal than the question of art.

I’ll return in my next post with a few thoughts on why I won’t be writing Justice Scalia a thank-you note just yet. I hope you’ll stick around.

1. "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones."