Court: Why the First Amendment protects violent video games

By Ken Paulson
President, First Amendment Center

The U.S. Supreme Court today ruled that states cannot restrict the sale or rental of video games to minors, a decision that reinforces both the First Amendment protection for interactive games and the free expression rights of children.

The courts struck down a California law preventing the sale to minors of games involving "killing, maiming, dismembering or sexually assaulting an image of a human being."

The Supreme Court acknowledged California's legitimate concern in protecting children, but said the First Amendment sets limits.

Protecting children "does not include a free-floating power to restrict the ideas to which children may be exposed," Justice Antonin Scalia wrote.

In reaching this decision, the Court reaffirmed core First Amendment principles, noting that the government cannot limit messages, ideas or content. There are narrow exceptions to freedom of speech involving obscenity or words that incite violence, but new restrictions must have a historical basis and can't simply be imposed on emerging media.

The key points in today's decision:

  • Entertainment is protected by the First Amendment: The Court notes that although video games are primarily intended for entertainment, "we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try."

  • Sexual and violent content are viewed differently: America has a long tradition of limiting depictions of sexual acts, the Court notes, but has never been as restrictive about violence. "Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore," Scalia wrote. "Grimm's Fairy Tales, for example, are grim indeed."

  • States can't target emerging media: As new technologies are invented, states cannot target them for restriction because of concern about the potential influence on children. In this case, for example, the Court concluded that the interactive nature of video games did not warrant government action any more than a compelling book would.

  • The science doesn't support censorship: The Supreme Court dismisses research that violence poses a threat to children, saying that it doesn't prove that violent video games cause children to act aggressively.

  • Disgust alone can't justify limits: Justice Samuel Alito did some of his own research into video games and shared his findings with his colleagues. "Justice Alito recounts all of these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression," Scalia wrote.

Overall, the Supreme Court's ruling is a vibrant application of 219- year- old Constitutional principles to cutting edge technology. It asserts that any new forms of communication or media to come will be protected by the First Amendment to the same extent as newspapers, films and other more traditional predecessors.

"New categories of unprotected speech may not be added to the list (of free speech exceptions) by a legislature that concludes certain speech is too harmful to be tolerated," Scalia wrote.

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