Constitution Daily

Smart conversation from the National Constitution Center

Court K.O.’s ban on violent video games

June 28, 2011 by Lyle Denniston


Editor's Note: Lyle Denniston will examine the just-finished Supreme Court term, and preview the coming term, at a program at the National Constitution Center July 6.

At the Supreme Court, hard cases make high drama, and the Justices’ annual closing day before a summer recess almost always proves the point, and did again on Monday.  In the decision that was perhaps most widely awaited across America this term, a divided Court ruled that the Constitution protects children’s access to video games of all types, however violent they may be and however young the children.  New technology, it said, did not change constitutional principle.

To that sweeping First Amendment decision, the Court added another, aiming what may be a fatal strike at attempts by election campaign reformers to revive a faltering system of public financing of campaigns – a system that was designed to reduce the influence of large private donors.

And, before closing the books on a highly controversial term, the Court set the stage to take up new constitutional challenges at its next term starting in October.  It agreed to judge the constitutionality of the government’s latest attempt to ban profanity and nudity on radio and TV when children are watching, and the constitutionality of police use of a high-tech tracking device – linked to 24 orbiting satellites in the GPS system – to keep track of where criminal suspects drive their cars and trucks.

Even if same-sex marriage and national health care controversies do not reach the Court for the coming term, although they still might, the docket already set is weighted with the makings of high constitutional drama again. 

It took the Court almost all of this term – from early November until Monday – to craft its decision on violent video games, clearly reflecting the depth of disagreement among the Justices.  Although seven of the nine agreed to overturn the specific California law, making it a crime to sell or rent such games to anyone under 18 (without a parent or adult at their side), the Court split 5-4 on the broadest proposition in the ruling.

That was a declaration that legislatures at no level of government have the authority to remove the First Amendment protection of depictions of violence, no more so for the content of  devices that teenagers (and pre-teens) regularly use in the digital era, than for Grimm’s Fairy Tales – a children’s classic from an earlier era that is not short on violence.

Justice Antonin Scalia’s opinion for the majority recounted the attempts, over many generations, to keep new modes of expression out of the hands of children out of fear it would harm them, but noted that the Court had never allowed those efforts to make violence a subject unfit for the very young.

Children, the opinion stressed, have their own constitutional right to spend time examining tales of mayhem and gore, even though some of those, Scalia conceded, might be “disgusting.”  But, he emphasized, “disgust is not a valid basis for restricting expression.”   Five members of the Court fully shared Scalia’s views, and two more agreed – on much narrower grounds – that California’s law was invalid.  There were but two dissenters on the result.

Court overturns Arizona campaign-finance law

The voting was not so widely splintered as the Court struck down Arizona’s 13-year-old system of providing public subsidies for candidates running for statewide offices, from the governor on down the ballot.  The vote was a clear-cut 5-4, with Chief Justice John G. Roberts, Jr., writing for the majority, and the newest Justice – Elena Kagan – writing what surely was the most important opinion she wrote in her first term.

The Arizona case had been closely watched, both by campaign reformers and by those in political (and legal) life who believe the First Amendment should be used to nullify a wide array of campaign-finance limits.  The new decision was a decisive victory for the latter group, as the Court nullified Arizona’s system of subsidizing candidates who are willing to forgo private donations in return for public funds, with the subsidies rising if those candidates are out-spent by opponents running on their own money.

The Chief Justice wrote that the system threatens to cause self-financed candidates to forgo some of their campaign activity, in order not to trigger rising subsidies for their opponents.   Justice Kagan, in dissent, argued that, without that kind of a system to assure that candidates will join in the subsidy program, a system of public financing will fall.  It is not enough, Kagan argued, for a state simply to hand out money to candidates to keep them from raising funds from private donors; there must be a mechanism to keep their races competitive when their rivals start spending more heavily than they can.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Court's work.

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