Opposable Thumbs

Justice Samuel Alito doesn't have a whole lot of love for the video game industry.

In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based not only on the number of victims killed, but on the killing technique employed. It also appears that there is no antisocial theme too base for some in the video-game industry to exploit.

But despite his statement in today's landmark Supreme Court opinion (PDF), Alito still voted to overturn California's restrictions on violent video game sales to minors. Six other justices voted with him, but two did not—and their dissents illustrate just how differently top legal minds can examine the same topic and reach opposing conclusions.

Paging Lady Godiva

Justices Breyer and Thomas both agreed that the First Amendment right to free speech was crucially important for video games as for other forms of expression, but both men argued that the state still has a right to restrict the sale of certain forms of speech to children. Indeed, Breyer's dissenting opinion wondered whether America now had an inconsistent approach to dealing with sex and to dealing with violence, in which even a bit of the "old ultraviolence" is no problem while nudity is subject to many restrictions.

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most vio­lent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

Breyer noted that both violence and sex have always been hallmarks of literature. "For every Dante, there is an Ovid," he wrote. "And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva."

He also noted that California's law doesn't ban the sales of any video game to adults, and it doesn't prevent any child from actually playing a game. All it prevents "is a child or adolescent from buying, without a parent’s assistance, a gruesomely vio­lent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17."

Quoting numbers showing that the video game industry's voluntary controls on games remain leaky and studies that at least raise questions about the effects of interactive violence on children's development, Breyer believes that California is well within its right to prevent minors from purchasing certain games. To those who don't believe that games can have any effects on players, Breyer asks:

Learning a practical task often means developing habits, becoming accustomed to performing the task, and receiving positive reinforcement when perform­ing that task well. Video games can help develop habits, accustom the player to performance of the task, and reward the player for performing that task well. Why else would the Armed Forces incorporate video games into its training?

Parenting, early American style

Justice Thomas, who hasn't spoken during a court argument in five years, supported the California bill for a different reason—because early American Puritan society placed the father in total control of a family and anyone wishing to speak to a child had to go through him.

Thomas' entire dissent is a long list of early American source material.

Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and... make them apply their knowledge in right action.” [cit. omitted] Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” [cit. omitted]. Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, ... fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.”

It goes on like this for some time. "In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority," Thomas notes. "In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent."

This matters because "the Constitution is a written instrument" and "'its meaning does not alter.'" Thomas' well-known originalism thus leads him to say that attitudes toward parenting in the 1600s and 1700s are crucial to understanding the limits of "free speech."

"It would be absurd to suggest that such a society understood 'the freedom of speech' to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents," he wrote. "The founding generation would not have considered it an abridgment of 'the freedom of speech' to support parental authority by restricting speech that bypasses minors’ parents."

Therefore, such restrictions of sales directly to minors don't violate the First Amendment.

We like to kill

In a separate concurring opinion, Justice Samuel Alito sided with the majority and addressed Breyer's point about a double standard. Alito points out that US obscenity law, to be constitutional, must contain a "threshold requirement" that provides narrow guidance about what's covered (so to speak). But "the threshold requirement of the California law does not perform the narrowing function" found in obscenity law.

When the key, three-step "Miller test" for obscenity was decided by the Supreme Court, it only applied to "hard core" porn, which was not a "common feature of mainstream entertainment" at the time. But violence? Americans love it, so any law limiting it has to be exceedingly narrow.

The California law "provides that a video game cannot qualify as 'violent' unless 'the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,'" wrote Alito. "For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions."

In other words: the basic concept of limiting sales to minors is fine with him, but the law has to be much tighter. When written too broadly, Alito and most other members of the court will strike it down—even if that means defending an industry that sometimes wallows in "antisocial themes."