Not for the first time, the Supreme Court considered a state’s attempt to “shoehorn” speech about violence into the obscenity exception to the First Amendment.  This time, California had introduced a law prohibiting the sale or rental of violent video games to minors.  The act required labeling of violent video games and included fines of up to $1,000.  Under the act, a “violent video game” includes one that involves killing or maiming, for example, if a reasonable person would consider the game appealing to a deviant or morbid interest of minors.  The definition also invoked prevailing community standards and a judgment of the game’s “literary, artistic, political, or scientific value for minors.”

Writing for the 5-4 majority, Justice Scalia affirmed that video games qualify for First Amendment protection and criticized California’s attempt to erode freedom of speech.  The Court delved into First Amendment jurisprudence, highlighting oaken principles: “What is one man’s amusement, teaches another’s doctrine; [E]sthetic and moral judgments…are for the individuals to make, not for the Government to decree . . . ; [A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The Court emphasized that the case law has been clear: the obscenity exception to the First Amendment does not cover anything a legislature may find shocking, but only depictions of sexual conduct.  The Court resoundingly rejected such “expansive views of governmental power to abridge the freedom of speech based on interest-balancing.”  The Court recognized the legitimacy of a state’s power to protect children from harm but denied that a state has “a free-floating power to restrict the ideas to which children may be exposed.”  Scalia summarized the precise danger posed by California’s law: “that the ideas expressed by speech–whether it be violence, or gore, or racism–and not its objective effects, may be the real reason for governmental proscription.”

As the Future of Music Coalition pointed out, this is a victory for more than just the video game industry.  Content creators, performers, and distributors across the entertainment industry can avoid the vague, restrictive standards the California law may have engendered among other states.  Online entertainment providers can dodge the expense of customizing or blocking their California services.  However, the strict scrutiny standard that applies to restrictions on the content of protected speech remains intact.  If a state demonstrates that its restriction is justified by a compelling government interest and is narrowly drawn to serve that interest, the scales may tip.

-Kelly Donley

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