SCOTUS: Games have First Amendment Protection

[Andrew J.]

Yahoo News:

The U.S. Supreme Court on Monday refused to let California regulate the sale or rental of violent video games to children, saying governments do not have the power to "restrict the ideas to which children may be exposed" despite complaints about graphic violence.

On a 7-2 vote, the high court upheld a federal appeals court decision to throw out the state's ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors' rights under the First Amendment, and the high court agreed.

"No doubt a state possesses legitimate power to protect children from harm," said Justice Antonin Scalia, who wrote the majority opinion. "But that does not include a free-floating power to restrict the ideas to which children may be exposed."

The California law would have prohibited the sale or rental of violent games to anyone under 18. Retailers who violated the act would have been fined up to $1,000 for each infraction.

More than 46 million American households have at least one video-game system, with the industry bringing in at least $18 billion in 2010.

Unlike depictions of "sexual conduct," Scalia said there is no tradition in the United States of restricting children's access to depictions of violence, pointing out the violence in the original depiction of many popular children's fairy tales like Hansel and Gretel, Cinderella and Snow White.

Hansel and Gretel kill their captor by baking her in an oven, Cinderella's evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, Scalia said.

"Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore," Scalia added.

But Justice Clarence Thomas, who dissented from the decision along with Justice Stephen Breyer, said the majority read something into the U.S. Constitution that is not there.

"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," Thomas wrote.

Not sure whether this fits better here or N&P.

[SCRawl]

Without getting too far into this, I'm shocked that Thomas dissented from Scalia's opinion. Isn't this a first?

[Thanas]

It happens rarely, but Scalia and Thomas are actually having different philosophies. Thomas is a joke, Scalia actually argues a specific philosophy. This opinion by him is well written as well.

And this belongs in N&P. Moved.

[Andrew J.]

Without getting too far into this, I'm shocked that Thomas dissented from Scalia's opinion. Isn't this a first?

The "Thomas does whatever Scalia does" meme has never had a strong basis in fact, despite its popularity. Thomas often has ideas that are unique or outside the mainstream conservative zone of legal thought Scalia inhabits. Off the top of my head, I know Thomas was the sole dissenter in the school searches case, and I've seen a few other opinions where his opinions diverged significantly from everyone else's.

[Alyrium Denryle]

It happens rarely, but Scalia and Thomas are actually having different philosophies. Thomas is a joke, Scalia actually argues a specific philosophy. This opinion by him is well written as well.

And this belongs in N&P. Moved.

There is a reason I refer to Thomas as Scalia's Homunculus. He usually just parrots back what shthe mastther (think Igore to Dr. Frankenstein, the onomatopoeia just does not work very well) tells him, but sometimes, he wants to get out of the mystic binding circle for a night on the jurisprudential town. I suppose that mental image is sort of its own punchline.

In either case, once Scalia finally dies at the age of 147 (when the nourishment he gains from feeding on the suffering of falsely convicted death row inmates and the disenfranchised poor/minorities becomes insufficient to sustain his youth, and some brave clerk is finally able to smash his phylactery), Thomas will die with him, curled up, wasting away around his master's grave, no longer having the wherewithal to stay alive, nor the energy to keep his body from slowly disintegrating into amorphous jelly.

In this case however, just reading the summary, I think this is a rather pleasant case of the broken clock being right twice a day, and Thomas somehow manages to fuck that up by only being right once per day. That said, there is a flaw here:

Hansel and Gretel kill their captor by baking her in an oven, Cinderella's evil stepsisters have their eyes pecked out by doves and the evil queen in Snow White is forced to wear red hot slippers and dance until she is dead, Scalia said.

"Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore," Scalia added.

While we do read these stories to our children, they (much like our history) are watered down and idealized. Not so much with the eyes being pecked out by doves (Doves? WTF? No crows? Damn HCA was fucked up, having your eyes pecked out by beaks not well adapted for it must really suck). It begs the question "how long ago do we have to abandon a practice before it stops being a national tradition?" If our standard is "the founding generation" then witch burning should be a protected form of religious expression.

[Night_stalker]

As a gamer, this ruling is one of great relief to me. It's rather annoying how our culture seems to be obsessed about regualting violence in video games, when movies like Hostel, Saw, and The Human Centipede (First Sequence), and even Caligula are allowed to be released in theaters without half as much controversy.

By contrast, video games while violent, definitively don't reach up to those levels of violence/grossness. Most gamers don't like really gory games. They are for us, a way to wind down after a long day, and also serve to fascinate us. The ESRB does a good job at rating any and all games, before their release into the world, and contrary to what Faux News says, there's no modern day sex simulator on the video game market, as far as I am aware.

If you have no issues letting your kid watch Family Guy, the OC, 24, The Sopranos, or even, Jersey Shore without being concerned, but when you see you kid pick up a copy of Halo:Reach, (which is rated M for Mature, due to, and I'm going to quote the rating box on the back of my copy's case, " Blood, and Violence". ) ground him for a week, then consider this. You're letting your kid watch shows, which are filled with considerable amounts of sex, drugs, violence, swearing, more swearing, lack of intelligence and dark themes, but don't want him to play a game with a rich story( Matter of opinion on the story's richness), enthralling characters, and the ability to socialize with people worldwide.

Kinda hypocritical, isn't it?


Here's a link regarding why gamers dislike lots of gore in their games:

http://www.wired.com/gamelife/2009/05/g ... ntiers0520

[Norade]

All that proves is that shitty games can't be made good by just adding gore and that people in a tiny survey might not like gore.

[Chardok]

All that proves is that shitty games can't be made good by just adding gore and that people in a tiny survey might not like gore.

You really are mentally deficient, aren't you? Please tell me you are so I don't read your posts with my head slightly cocked, one eyebrow raised and a look of mixed disgust and contempt on my face because, quite frankly, holding that pose it tiresome, but it just sort of happens every time I read your worthless drivel.

[Norade]

All that proves is that shitty games can't be made good by just adding gore and that people in a tiny survey might not like gore.

You really are mentally deficient, aren't you? Please tell me you are so I don't read your posts with my head slightly cocked, one eyebrow raised and a look of mixed disgust and contempt on my face because, quite frankly, holding that pose it tiresome, but it just sort of happens every time I read your worthless drivel.

I was looking at the article in Night_stalker's post, the author cited a small study - didn't actually post the numbers from it though - and then said he saw through the gore in a game that was widely panned by critics and gamers alike for being bland at best. Anybody could have told you that some gamers are turned off by gore and that gore doesn't make a bad game good. As for you, care to explain exactly what I said that you object to, or are you just following me because you have fuck all better to do.

[Mr Bean]

The "Thomas does whatever Scalia does" meme has never had a strong basis in fact, despite its popularity. Thomas often has ideas that are unique or outside the mainstream conservative zone of legal thought Scalia inhabits. Off the top of my head, I know Thomas was the sole dissenter in the school searches case, and I've seen a few other opinions where his opinions diverged significantly from everyone else's.

The meme is given credibility largely because it's been over five years since Clarence Thomas asked a question from the bench. If someone is seen as agreeing with someone ninety percent seven percent of the time and never says anything then yes that meme has a basis in reality. However dig a bit deeper and remove all issues where the Surpemes were unanimous and it drops from 90% odd down to the mid 70% and it's note the Liberal members vote in lockstep with each other far more than Scalia and Thomas do (High 80% even after you factor in the unanimous votes).

Thus getting back to our silence issue, Thomas is seen as Scalia's cohort because Thomas never a vocal judge to begin with has gone into every case with his mind made up for over five years now. Why do I say that? Because he's not asked any questions. You ALWAYS have a question even if you sit down with your other conservative justices and figure out your questions before hand something is going to occur to you at least one case in ten while your listening to both sides presenting their case in front of you. And note I said one case in ten, not one case in three hundred and thirty six which as of February 2011 was the number of Supreme Court cases with Oral arguments since Thomas last opened his mouth on the Bench.

[TheFeniX]

Ah.. Mortal Kombat and it's ever lasting impact on gaming.

Personally, I don't know if I would have had an issue with the law if it hadn't been so stupidly broad and would have bypassed the ESRB. Correct me if I'm wrong, because I can't find the original law, but wouldn't this make WoW illegal for minors (because of humans) whereas RIFT would be ok because the "humans" are Mathosians? WoW let's you actually eat dead humans if you're undead. The Death Knight starting zone is also pretty fucking creepy, what with the murder and soul pillaging involved. Oregon Trail gives you the option to let your people starve to death and don't get me started on the evils you can inflict against humanity in "The Sims."

Movies aren't really applicable as, at best, a parent can find dedicated review sites, at worst, they waste 90 minutes watching it themselves. My parents wouldn't last 5 minutes trying to use a controller to try out Mass Effect, even if it was a rental. Consider some of the games require hours of play to advance where anything actually controversial happens. I've mentioned this before: but parents don't even pay attention to reviews depending on the content. The case in point was when I saw South Park B,L,and U on opening day and was treated to a movie theater filled (literally) with young children and their parents. By the end of the Uncle Fucker song, there were maybe 15 people left.

The law also puts way too much weight on the gore (duh) being what makes the game mature. No one looked at Mortal Kombat as some realistic kill simulator. Kano ripping out someone's heart or people exploding into gibs in <insert violent game here> is "cool" in the same way as Arnold dual wielding an M-16 and 12-gauge shotgun in Commando is cool: it's totally over the top ludicrous and actually hurts immersion. In fact, once we saw the game with the violence neutered in the SNES version, we realized there wasn't much of a game left. The gore-bereft Street Fighter has always been more popular.

[Eulogy]

Perhaps Scatia should try some of Popcap's games. Or a few sims, or puzzles. Hell, Super Smash Brothers - aftera few hours, Scatia just might have a new guilty pleasure.

[Master of Ossus]

There is a reason I refer to Thomas as Scalia's Homunculus. He usually just parrots back what shthe mastther (think Igore to Dr. Frankenstein, the onomatopoeia just does not work very well) tells him, but sometimes, he wants to get out of the mystic binding circle for a night on the jurisprudential town. I suppose that mental image is sort of its own punchline.

Aly, I would really like to hear about your "reason" for this, seeing as it's bullshit. Thomas fully joined Scalia's opinions in controversial (meaning: non-unanimous) cases 53% of the time, and disagreed with Scalia's judgment in 27% of such cases. That's not remotely identical voting patterns. By contrast, check out the real parrot on the court: Justice Kagan. She's so far fully joined 72% of Sotomayor's opinions in full on controversial cases, and disagreed with Sotomayor in only 11% of cases. So in other words, she agrees completely with Sotomayor almost half again as frequently as Thomas and Scalia agree, and Thomas and Scalia disagree entirely more than twice as frequently as Sotomayor and Kagan.

I single out Kagan for criticism, here (even though the statistic could be read the same way against Sotomayor) because she asks fewer questions than every other justice except Thomas (and, unlike Thomas, she actually appears to think that oral arguments are relevant to the disposition of the case--she was, after all, an experienced litigator in such courts), and further because she has never written in a 5-4 case.

If we look at all cases, Thomas' rate of joining Scalia's opinions in full trails 13 other "pairs" of justices, and is tied with one other. Their rate of disagreement ranks tied for tenth lowest. They may agree with each other, but Thomas is hardly a parrot. You, on the other hand, with your endless repetitions of the popular claim, I can make no such statement about.

[Edward Yee]

The law also puts way too much weight on the gore (duh) being what makes the game mature. No one looked at Mortal Kombat as some realistic kill simulator. Kano ripping out someone's heart or people exploding into gibs in <insert violent game here> is "cool" in the same way as Arnold dual wielding an M-16 and 12-gauge shotgun in Commando is cool: it's totally over the top ludicrous and actually hurts immersion. In fact, once we saw the game with the violence neutered in the SNES version, we realized there wasn't much of a game left. The gore-bereft Street Fighter has always been more popular.

I consider Assassin's Creed II an interesting contrast... not nearly as gorey, since all you get is the blood, which is actually the only "M-rated" elements that can be toggled off. On the other hand, you have:Spoiler

a child's almost-visible hanging, two visible hangings, implied assault on a mother, "obvious" prostitutes who have relatively tame amounts of "skin," quite a good bit of use of profanities -- albeit some being verbally in Italian but translated in the English subtitles -- and much in the way of "adult" thematic elements, complete with fist-fighting a Pope who verbally disavows Christianity and religion and a player character's sanity starting to crack as his ability to identify as himself weakens.

I would find it interesting if a revised ESRB was based around the latter "intangible elements" part far more than visible elements, as I consider that a more proper way to base a rating system for video games. After all, I believe that a child may be less messed up by what they see on-screen than what they read into it mentally, i.e. if they get nightmares or a long-term compulsion from realizing the logical conclusion of something that would technically be "T-rated"...

[Lost Soal]

If its unconstitutional to restrict video games on the basis that its protected speech, could the same argument not be used against movies?
Or has that already been tried and knocked back?

[Flagg]

If its unconstitutional to restrict video games on the basis that its protected speech, could the same argument not be used against movies?
Or has that already been tried and knocked back?

WTF are you talking about? There are no laws restricting movies.

[TheFeniX]

WTF are you talking about? There are no laws restricting movies.

I think he's under the impression (like I once was) that NC-17 and rated R movies actually have some kind of legal repercussions if you let a -16 year-old watch them (with or without supervision). This is not the case, at least in the US.

I would find it interesting if a revised ESRB was based around the latter "intangible elements" part far more than visible elements, as I consider that a more proper way to base a rating system for video games. After all, I believe that a child may be less messed up by what they see on-screen than what they read into it mentally, i.e. if they get nightmares or a long-term compulsion from realizing the logical conclusion of something that would technically be "T-rated"...

My niece wouldn't touch my mother's piano for weeks after I let her play Mario 64 and she got to the Haunted House. I was prepared to laugh as she threw the controller down and bolted from the room, but to be honest, even at the age of 26-27, that piano creeps me out.

Really though, games are just a bitch to classify. Parents usually have a pretty good grip on what their kid's can handle (provided they use this information) when it comes to movies and they're easy to watch first. But man, I've played some games with really dated graphics or very little gore that kept me up at night. A hilarious one was Secret of Mana.

[Edward Yee]

If its unconstitutional to restrict video games on the basis that its protected speech, could the same argument not be used against movies? Or has that already been tried and knocked back?

If I recall, the point in the majority opinion was that video games were not so substantially different from other forms of media/protected speech as to be any less protected speech than them.

You know, TheFeniX, there was an article in the January 2011 issue of GameInformer discussing the Iranian video game ratings system.

[SirNitram]

"But that does not include a free-floating power to restrict the ideas to which children may be exposed."

That could be used for evil pretty well. Creationism are ideas to expose children to.

[ChaserGrey]

"But that does not include a free-floating power to restrict the ideas to which children may be exposed."

That could be used for evil pretty well. Creationism are ideas to expose children to.

Given the context of the quote I think it would only apply to a law banning the sale of creationist media to children, similar to the California law on video games. It wouldn't apply to other questions such as (for example) what's taught in public schools.

Personally I'm okay with the government not being able to ban creationist media outright. No matter how wrong-headed the idea behind the content it, it strikes me as too dangerous of a precedent to set. If the government can ban creationist media, what stops an extreme right-wing government from repealing that law and protecting the children from the dangers of evil-lution(TM)?

As a side note, I find this a good test for support of any measure: take the proposed government power. Now imagine it in the hands of your worst political enemy. Still seem like a good idea?

[Sarevok]

"But that does not include a free-floating power to restrict the ideas to which children may be exposed."

That could be used for evil pretty well. Creationism are ideas to expose children to.

Yes but who decides which ideas are evil ? You may decide children must not be exposed to creationism and a fundie would argue the same for evolutionism.

That is why the whole idea of state controlling the spread of ideas is fraught with danger.

As a side note, I find this a good test for support of any measure: take the proposed government power. Now imagine it in the hands of your worst political enemy. Still seem like a good idea?

Yeah that is an interesting idea. Before a new law is created it should be rigorously tested for potential abuse. Sort of like how programmers code defensively and prepare for bugs.

[Phantasee]

Perhaps Scatia should try some of Popcap's games. Or a few sims, or puzzles. Hell, Super Smash Brothers - aftera few hours, Scatia just might have a new guilty pleasure.

Why are you calling him Scatia? And voted against banning games for violence, I really don't think he has an issue with video games. Read the fucking article next time.