Here’s a contemporary equivalent of the frequent porn screenings that took place in the basement of the Supreme Court in the 60s and 70s:
It’s hard to picture Supreme Court Justice Elena Kagan, a former solicitor general of the United States as well as a former dean of Harvard Law School, hunched over at a video game console, controller clenched in her hands, playing a violent video game. It is harder still to imagine her opponent, Justice Stephen Breyer, sitting beside her engaged in the virtual combat, all under the august roof of the United States Supreme Court. But it happened. The year was 2011. She would have been about 51; he 73.
Since the face-off took place in Breyer’s office at the high court, we have to assume they were not wearing their robes — though that would have been a sight.
They were, however, playing in the line of duty. They were struggling to decide a major constitutional question: Whether a California law banning the sale or rental of violent video games to minors violated the First Amendment. As Kagan recently told the story at Harvard Law School, neither had made up their minds. It was a “really hard case. A super hard case,” she said.
Brown v. EMA is indeed an interesting and rather hard case. I am inclined to agree with the majority that the ban on the sale of violent video game to minors violates the 1st Amendment. It is true, though, that the law as it stands doesn’t make any sense. Bans on selling sexually explicit material — or, indeed, mere depictions of nudity — to minors are not, under current law, unconstitutional. As Breyer’s dissent points out, this is entirely illogical:
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?
If there’s a good answer to that question, it’s certainly not in the opinion of the Court. Since it’s was written by Scalia, you’ve probably guessed Scalia’s justification rests on his favorite technique, the pure tautology: sexually explicit material can be obscene (and hence exempt from First Amendment protection) but merely violent material cannot because that’s how we’ve always done it. But this distinction — which is also reflected in the norms the FCC applies to broadcast television, which allow a network to build a series around a particularly gruesome serial killer but potentially subjects a network that allows a woman’s nipple to make a brief appearance to be subject to huge fines — is completely indefensible. And there’s the additional problem that as currently interpreted by the Court the First Amendment allows the state to restrict the dissemination of materials that depict nudity but are not legally obscene to minors.
This isn’t to say that Breyer is right that the California ban was constitutional. You can make a good case for leveling up an simply ending the practice of declaring materials legally obscene or (in the case of broadcast media) “indecent”. But the current state of the law doesn’t make any sense. If anything, you can make a better case for allowing the state leeway to restrict violent material (especially to minors) than sexually explicit material.