Dissent in Supreme Court Decision Means War Isn’t Over


The Supreme Court ruled in favor of games this time, but they may have have left the door open to laws restricting game sales in the future.

Today is a good day for videogames. The Supreme Court ruled that it is not constitutional to restrict sales of games based on violent content. A majority of the nine justices voted in favor of striking down California’s proposed law, but the decision was far from unanimous. Two justices (Justices Clarence Thomas and Stephen Breyer) voted in favor of the law, claiming that minors were not protected by the First Amendment, but two justices wrote a concurrent opinion that merely said the language and framing of the California law didn’t work. Justice Alito left open the possibility that a properly worded law could get his vote in the future.

Thomas and Breyer voted in favor of the law because they believe the First Amendment was not meant to protect minors’ choice in viewing all media without the parent’s consent. “I do not think the First Amendment stretches that far. 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,” wrote Thomas.

The law stated that it is up to the parents to decide whether the kids can play restricted games as long as they buy them, and Thomas had no problem with a law upholding the parent’s right to choose but restricting sale directly to minors.

More troubling, however, is the argument brought forth by Alito and Chief Justice Roberts in the concurrent decision which claims games are different from books or movies and could be subject to different consideration.

“I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires,” Alito wrote. “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.”

Justice Alito believes, and Chief Justice Roberts agrees with him, that games are an inherently different medium than books or movies, and therefore might deserve more scrutiny. For Alito, it is the detail and interaction which must be considered as he illustrates with a thrilling argument:

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Alito does not believe that we should dismiss the different qualities of videogames when considering their legality. “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, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.”

Luckily, Alito and Chief Justice Roberts did not think it necessary to vote differently than the majority, but they do raise concerns that we may not have seen the end of legislation restricting videogames.

Today, we won the battle, but the war is far from over.

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