Constitution Daily

Smart conversation from the National Constitution Center

How does SCOTUS define violence?

November 19, 2010 by Donald Applestein Esq.


Will violent videos become the “new obscenity” under the First Amendment?

“What Justice Scalia wants to know is what James Madison thought about video games”, Justice Alito said.

“No” Justice Scalia responded. “I want to know what James Madison thought about violence.”

This was but one exchange during recent oral argument in Schwarzenegger vs. Entertainment Merchants Association. The case arose after California enacted a law prohibiting the sale of violent video games to minors under 18 (See Geoff Stone's take here). California argued that since the Supreme Court permits states to restrict the sale of explicit sexual material to minors under the 1968 decision of Ginsburg vs. New York, states could restrict sales to minors of video games depicting extreme violence. Thus, state was asking the Court to expand the “obscenity exception” to this type of video. Under the act, parents could purchase these games.

During a lively argument a number of basic themes emerged. How is “violence” to be defined? What kind of violence would be “too much” violence. Justice Scalia asked, “What’s a deviant violent video game? As opposed to what? A normal violent video game?” Justices Ginsburg and Kennedy joined Justice Scalia in pointing out that many classic stories regularly read to children contain violence – such as Grimm’s fairytales. Justice Scalia also observed that nothing in the established law allows the government to ban depictions of violence, alluding to a recent decision which struck down a prohibition against showing acts of animal cruelty by a vote of 8 to 1.

Counsel for the Merchants Association, Paul Smith was aggressively questioned by Chief Justice Roberts and Justices Alito and Breyer. Smith argued that existing solutions were capable of handling the situations. References were made to the system used to rate movies. The ultimate decision under these systems was left to the parents to decide what their child would see or not see. Those three justices did not seem to feel that that was an adequate solution.

So, where do you stand?

How should “violence” in a video game be defined?

How should “too much violence” be defined?

Should the Supreme Court expand what expressions are not protected by the First Amendment to include violence video games?

Should parents be responsible for deciding which video games their children play?

If not parents, then who?

Let us hear from you.


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