Games on Trial, Part Two

Today is a great day for the video game industry, and for free speech in the United States. The Supreme Court of the United States has overturned California’s law banning the sale of “deviant or morbid” violent videogames to minors. In so doing, it has extended the aegis of First Amendment protections over the entirety of the gaming medium. Today, our medium gained its legitimacy.

Back in November 2010, in Games on Trial, I first analyzed the issues presented in Schwarzenegger v. EMA and predicted that the Court would overturn the California law as being too vague and overly broad, while explicitly leaving open an opportunity for states to regulate games in other, more narrowly tailored ways. I’m happy to report that I underestimated the broad scope of protection that the Court would extend.

Indeed, it is hard to imagine a majority opinion that could extend broader protection to video games. Justice Antonin Scalia, writing for the majority, notes that while “reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat… these cultural and intellectual differences are not constitutional ones. Crudely violent video games…are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.” These strong words put to death any notions that lawmakers might have had regarding a renewed attempt to legislate against games.

Much will doubtless be made of the fact that only 5 justices participated in the majority opinion; that Justices Alito and Roberts filed a concurring opinion; and that Breyer and Thomas both dissented. But the concurrence and dissent are, in my opinion, going to be relegated to the forgotten file cabinets of legal specialists.

What makes the majority opinion unassailable is that it is a broad and principled decision. The majority holds that “video games qualify for First Amendment protection. The basic principles of freedom of speech…do not vary with a new and different communication medium. The most basic principle-that government lacks the power to restrict expression because of its message, ideas, subject matter, or content-is subject to a few limited exceptions [and] a legislature cannot create new categories of unprotected speech…. California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.”

Supporting this strong and broad opinion are both Sotomayor and Kagan, the two newest and most liberal judges on the bench; Scalia and Ginsburg, the Court’s most intellectually powerful conservative and liberal voices respectively; and Kennedy, the Court’s key swing vote. This is not a 5-4 conservative/liberal decision, but a cross-partisan decision that is rooted in our Constitutional values.

Roberts and Alito’s concurrence, though agreeing to overturn the law, suggests that “there are reasons to suspect that the experience of playing violent video games might be very different from reading a book, listening to the radio, or watching a movie.” This was actually the viewpoint I worried the majority might adopt, but in fact this viewpoint gained no adherence from either the majority or half the dissent. In other words, only 3 of the 9 justices thought videogames were in any way different from other types of speech! It seems that history is on our side here, as each new entertainment medium has always at first been battered and bruised before become becoming accepted as legitimate.

Justice Clarence Thomas was completely unconcerned with videogames at all – his position was simply that the First Amendment, as originally understood, did not provide free speech rights to minors. However, as historically plausible his argument may be, it is not an opinion that will ever gain the support of anyone else on the Court. For instance, Thomas’s view would make it Constitutional to forbid booksellers from selling books to children without parental consent, and this is simply outside contemporary jurisprudence, conservative or liberal.

Breyer’s dissent is, of course, a nightmare – in contrast to two centuries of precedent, he suggests that violence can be as readily regulated by the government as pornography, and that videogames should be signaled out for special attention on the basis of their interactivity. But Justice Breyer has never met a government regulation he didn’t find Constitutional. The real surprise is that Breyer’s position can command at best 3 of the 9 judges, and those conservatives at that – hardly an alliance of strength on which to topple a strong First Amendment precedent.

Today, then, should be a day of celebration for game industry professionals. In the broadest terms imaginable, the Supreme Court of the United States has declared our medium to be a protected form of speech, not to be signaled out for special treatment by overzealous lawmakers. Videogames have joined books, movies, radio, and television as legitimate children in the family of free speech.

Alexander Macris is co-founder and publisher of The Escapist, as well as president and CEO of its parent company, Themis Media. He has also written two tabletop wargames, conceived and edited the book “MMORPGs for Dummies,” and designed the award-winning web game “Heroes Mini.” After hours, he serves as president of Triangle Game Initiative, the Raleigh-Durham area’s game industry association, and runs a weekly tabletop roleplaying game campaign of concentrated awesomeness.