Earlier today the Supreme Court issued a 7-2 decision which struck down, on First Amendment grounds, California Assembly Bill 1179 that prohibited the sale or rent of violent video games to minors.  The betting here is that Brown v. Entertainment Merchants Association represents only the opening salvo in what will prove to be a very long war.

To start from the beginning, any decision for the private party comes as something as a surprise because it necessarily overrides two strong state interests that have previously protected many state laws from First Amendment attacks.  The control against violence is always a legitimate state interest, as is the protection of minors.  It took therefore some fancy footwork from Justice Scalia to explain why this statute did not fall into these broad categories.  His answer was that the California law sought to create a new class of speech that is exempt from constitutional scrutiny, which could not be done since the time-honored principles that applied to books could carry over to the new forms of communication.  The legislature is thus not free “to add new categories of unprotected speech” to the list of wrongful conduct.

Yet in this instance, the level of novelty is nonexistent, and a credible argument could be made that the mode of communication to minors could easily change the type of responses that they have to these forms of speech.  It was arguments of this sort that led Justice Alito, with Chief Justice Roberts concurring, to take a different approach that asks whether a narrower statute targeted at some extreme forms of violence could survive constitutional muster.  Fair question, as far as I am concerned, because both types of justification for this statute fall comfortably within the libertarian concerns with violence and infancy.  This statute is not like a campaign finance statute that forces one side of an election to subsidize in effect another, which a divided Supreme Court struck down today in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett.

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