You’ve gotta love Justice Antonin Scalia when he gets on a First Amendment roll.
Writing the majority opinion as the Supreme Court struck down a California ban on selling violent video games to minors, Scalia buzzed through like an expert gamer.
“The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try,” he wrote at the outset.
He then quoted a precedent involving the Playboy Channel: “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’...”
For punctuation, he cited gory books kids read: In “Grimm’s Fairy Tales,” Hansel and Gretel bake their captor in an oven. Homer’s Odysseus grinds the Cyclops’ eye with a heated stake. Marooned schoolboys murder their mate Piggy in “Lord of the Flies.”
As for studies linking video-game violence with harm to minors, Scalia said, “The same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play video games like Sonic the Hedgehog that are rated ‘E’ (appropriate for all ages), or even when they view a picture of a gun.”
Though California has power to protect children, he wrote, it isn’t “free-floating power to restrict the ideas to which children may be exposed.”
The ruling was 7-2 and not a stereotypical liberal-conservative split.
Scalia, the conservative icon on so many issues, was having none of California’s nanny-state argument, and he had ready comebacks for his colleagues’ concerns.
Justice Samuel Alito agreed the law was unconstitutional, but in a concurrence he complained about the graphic mayhem in games that, for instance, let players re-enact the carnage at Columbine High School and Virginia Tech or President John F. Kennedy’s assassination in Dallas.
Alito said reading about Raskolnikov killing an old pawnbroker with an ax in “Crime and Punishment” pales compared to creating a game avatar that hacks a victim to death, with the player hearing the thud, seeing her skull split and feeling the sensation of spurting blood.
Scalia’s Footnote 4: “Reading Dante is unquestionably more cultured and intellectually edifying than playing ‘Mortal Kombat.’ But these cultural and intellectual differences are not constitutional ones.”
Justice Clarence Thomas in dissent said, “’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.”
Scalia’s Footnote 3: “It could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent. ... It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract. ...”
Justice Stephen Breyer, who’s far more nuanced than the “liberal” label usually slapped on him, also dissented. He said the First Amendment allows government to help parents keep their children safe from society’s corrupting influences.
He pointed to laws to keep pornography away from minors, and said legislatures should be able to weigh research about the impact of violent video games.
“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?”
Scalia’s Footnote 7: “One study ... found that children who had just finished playing violent video games were more likely to fill in the blank letter in ‘explo_e’ with a ‘d’ (so that it reads ‘explode’) than with an ‘r’ (‘explore’). ... The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.”
Twenty Junes ago, Scalia joined a 5-4 majority that upheld Indiana’s ban on totally nude dancing at the Kitty Kat Lounge in South Bend and other strip clubs. He and dissenter Justice Byron White (who died in 2002) exchanged hilarious dueling hypotheticals about Indianans dancing naked in the Hoosierdome.
Scalia no doubt could explain legal reasoning for why a state can ban nude dancing but not violent video games — but he should be glad he doesn’t have to stand for election.
• Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.