SCOTUS, Video Games, & Violence

June 27, 2011 8:16 AM

US Supreme Court finds Cali. law restricting sales of violent videogames to adults violates First Amendment.

Majority decision finding law to violate first amendment written by Scalia J., joined by Kennedy,
Ginsburg, Sotomayor, and Kagan, JJ.:

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest... California cannot meet that standard. Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring
a particular speaker or viewpoint.

Concurring judgment by Alito J., joined by Roberts C.J. Separate dissents by Thomas and Breyer, JJ.

posted by modernnomad (93 comments total)

I'm happy this decision was made this way, but saddened it had to get this far, yet again, with the possble chance that the justices just might vote the other way.
posted by leviathan3k at 8:19 AM on June 27, 2011

modernnomad: "written by Scalia J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ."
Huh, you don't see that every day.
posted by Proofs and Refutations at 8:20 AM on June 27, 2011 [14 favorites]

Thomas diverged from Scalia's ass. Huh.
posted by notsnot at 8:22 AM on June 27, 2011

Cheers!
posted by mrgrimm at 8:22 AM on June 27, 2011

Scotus Blog's page on the Brown vs EMA case.
posted by cavalier at 8:23 AM on June 27, 2011

JJ? Judge Judy?
posted by symbioid at 8:24 AM on June 27, 2011 [1 favorite]

The third footnote of the opinion addresses Thomas's dissent. It's sharply written (it seems to me).

" JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none."

Thomas's opinion in his own words.

"The historical evidence shows that the founding
generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society"
posted by oddman at 8:26 AM on June 27, 2011 [2 favorites]

The question in this ruling was not "Should children be allowed to play violent games?" but rather, "Are games so influential on children that they should be treated differently to movies, books, images and music, which already receive first amendment protections?". The correct answer is no.

I'm of the opinion that games actually project less realism than movies. It's easy to let your mind wander when watching a film, and briefly treat the situations depicted as real. When playing a game, if you let your mind wander, your character will probably be staring blankly at a wall, or running round in circles. The illusion of reality can constantly be broken by the absurd actions of the player. This reinforces the notion the player is participating in a fiction, instead of passively witnessing reality.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:26 AM on June 27, 2011 [4 favorites]

So - why is porn ok to ban and not video games? Not that I'm upset about this ruling at all. I just don't quite get the logic behind it. But then again... Sex/Violence. USA! Blah blah...
posted by symbioid at 8:26 AM on June 27, 2011 [6 favorites]

Clarence Thomas disagreed with Scalia??? Just how much money was Ginny Thomas paid?
posted by orthogonality at 8:29 AM on June 27, 2011 [2 favorites]

Thomas diverged from Scalia's ass. Huh.

This violates my theory on Scalia and Thomas merging into a two-headed swamp monster a la Human Centipede. I will write this one off as an outlier.
posted by Mister Fabulous at 8:30 AM on June 27, 2011 [3 favorites]

JJ? Judge Judy?

It's an abbreviation for Justices; similar, "J" refers to one Justice ("Sotomayor, J") and "CJ" to the Chief Justice.
posted by orthogonality at 8:31 AM on June 27, 2011

So - why is porn ok to ban and not video games?

"Obscene" things can be legally banned. Pornography which is not regarded as obscene is very difficult for the government to regulate. Laws keep getting struck down.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:32 AM on June 27, 2011 [4 favorites]

Note that any porn producer or movie maker with brains will seek to participate in a voluntary ratings system or adult-authentication system, to avoid court cases which could change the legal landscape and result in more government regulation. It's the same reason you see very limited swearing and sex on basic cable.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:34 AM on June 27, 2011 [1 favorite]

Thomas diverged from Scalia's ass. Huh.

Scalia and Thomas are pretty closely aligned, but they aren't the most closely aligned justices on the Court, depending on how you look at it. And lately they haven't been the most closely aligned by any metric. From Wikipedia:

"On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%). Scalia and Thomas's agreement rate peaked in 1996, at 97.7%. By 2004, however, other pairs of justices were observed to be more closely aligned than Scalia and Thomas. ...

Goldstein's statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences. For example, in that same term, Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia. By the metric that produces the 91% Scalia/Thomas figure, Ginsburg and Breyer agreed 90% of the time. Roberts and Alito agreed 94% of the time."
posted by jedicus at 8:35 AM on June 27, 2011 [10 favorites]

"The historical evidence shows that the founding generation believed parents had absolute authority over their minor children"

You know who else the "founding generation" thought they has absolute authority over?

That's right, slaves.

Actually, that's not even true: there is some state case law in which slaves sued their masters. So Justice Thomas would have us believe, that according to the founders, children had fewer rights than slaves.
posted by orthogonality at 8:35 AM on June 27, 2011 [1 favorite]

Thomas's opinion in his own words.

"The historical evidence shows that the founding
generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society"

This is true only if the age of "minor children" is set at 10 years or younger. After age ten, most children of "the founding generation" were apprenticed or impressed into the Navy or (if their family were of the ruling class in the colonies) sent to a boarding institution in Boston or England. And the grandchildren of these children toiled in factories, mills and mines. Like many conservatives and tea partiers, Thomas flaunts a romanticized view of America's "founders" (none of whom used that term) ill informed by historical data or insight.
posted by Gordion Knott at 8:36 AM on June 27, 2011 [8 favorites]

With respect to the difference between porn and violence, part of the decision rested on California's refusal to ban all violent content in children's media, e.g. a 12 year old can't play a violent game, but could watch a violent cartoon. The court suggests that the law would be better (though not necessarily constitutional) if it covered all speech to children. Since porn laws cover all media, they avoid at least that problem.
posted by oddman at 8:38 AM on June 27, 2011 [1 favorite]

modernnomad: "written by Scalia J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ."
Huh, you don't see that every day.

More often than you'd think, actually.
posted by Ironmouth at 8:39 AM on June 27, 2011 [3 favorites]

This is a fun callout on Thomas, footnotes on pages 7-8, majority opinion. (emphasis added by me)

JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. Our point is not, as JUSTICE THOMAS believes, post, at 16, n. 2, merely that such laws are “undesirable.” They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as JUSTICE THOMAS asserts, “circular,” ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.
posted by Mister Fabulous at 8:43 AM on June 27, 2011 [4 favorites]

I really don't understand individuals who spend a lot of capital fighting this all the way to the Supreme Court.
posted by glaucon at 8:44 AM on June 27, 2011

I really don't understand individuals who spend a lot of capital fighting this all the way to the Supreme Court.

Do you mean the state of California or video game merchants? Cause video games are a multi-billion dollar industry these days.
posted by kmz at 8:52 AM on June 27, 2011 [1 favorite]

It must be strange to clerk for Thomas.
posted by rtha at 8:57 AM on June 27, 2011 [3 favorites]

Holy hell, finally got to down to Thomas's dissenting opinion. If you want to see why I rag on this assclown constantly, go read it. Here's some Thomas gems:

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.

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” [...] “its meaning does not alter.”

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” [...] Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.”

Children lacked reason and decisionmaking ability. They “have not Judgment or Will of their own,” John Adams noted.

In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have under-stood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech— for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment.

It scares me that someone this ass-backwards with so much regressive thought could get appointed to the Supreme Court.
posted by Mister Fabulous at 8:57 AM on June 27, 2011 [9 favorites]

I really don't understand individuals who spend a lot of capital fighting this all the way to the Supreme Court.

I don't understand the knuckleheads who do this thinking they can be mayor of San Francisco afterwards.
posted by Doublewhiskeycokenoice at 8:57 AM on June 27, 2011 [2 favorites]

And Leland Yee, way to join Tipper Gore and others as yet more fuel on the fire to prove that Democrats like legislating morality too. Who needs Republicans with Democrats like these?
posted by kmz at 8:59 AM on June 27, 2011 [1 favorite]

Morazzini’s lowest moment, though, appeared to come with a comment by Justice Anthony M. Kennedy, whose votes the state almost surely would need to win the case. The state had argued, Kennedy noted, that the constitutional standards for obscenity could simply be applied to expressions of violence. The problem, the Justice went on, is that “for generations there has been a societal consensus about sexual material…But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this indicates to me the statute might be vague, and I just thought you would like to know that reaction.”

Exactly. Violence has not had the same scrutiny that pr0n etc. has endured. This case was so much more than minors having access to violent video games.
posted by Benway at 8:59 AM on June 27, 2011

The right decision was made, and I'm glad that this chapter is over now. Games, movies, and books should be treated equally. That is all it comes down to. Parents can still have control over what their kids play, watch, or read, but there is no legal ground on which to criminalize the sale of games to kids over other media.

As a gamer, avid reader, writer, movie buff, and (hopefully) future parent, this is definitely good news.
posted by cmgonzalez at 9:04 AM on June 27, 2011 [4 favorites]

Thomas's dissent strikes me as rationalizing, not reasoning.
posted by papercrane at 9:05 AM on June 27, 2011

I generally support the notion that the Supreme Court has always been the consistently best-functioning branch of the Federal Government, but damn, does Clarence Thomas ever provide an increasingly-convincing argument against the lifetime appointment of judges.

Even Scalia knew that this was a clear cut case. I disagree with Scalia on just about everything, but he at the very least tries to practice actual jurisprudence.
posted by schmod at 9:08 AM on June 27, 2011 [1 favorite]

I'm not surprised by Thomas' dissent here, nor by his disagreement with Scalia. A lot of people forget that Thomas is actually much, much more conservative than Scalia. For example, he believes that most of the Court's Commerce Clause jurisprudence in the twentieth century was wrongly decided, and that federal laws such as the ADA, the Civil Rights Act, and so on all go far beyond Congress' power to regulate interstate commerce. Given his druthers, Thomas would roll the state of the law back to 1910 or so. Small wonder that Scalia once described the difference between himself and Thomas thusly: "I'm not a nut."

Scalia and Thomas often sign on to the same dissent because Scalia *is* the second-most conservative guy on the bench, so there's a wide range where the two men will agree and everyone else will think they're way off. And these dissents are usually written by Scalia because he's a much better writer than Thomas - and unlike Thomas, he actually enjoys the work. But there have been plenty of occasions on which Thomas took a much more conservative line than Scalia.

In fact, a good (relatively) recent example was another youth speech case, Morse v. Frederick. This was the "Bong Hits 4 Jesus" case - a high school kid in Juneau, Alaska, unfurled a banner with that slogan while the Olympic torch was carried past, and was suspended for his trouble. The kid sued, litigated for years, and ultimately lost on the fairly narrow grounds that (in the Court's view) schools can legitimately ban speech advocating illegal behavior. (Alito's concurrence, joined by Kennedy, emphasized that speech advocating a change to the law would still have been protected political speech - "Legalize Bong Hits 4 Jesus", for example").

Anyway, so that's the Court's decision and the two-member concurrence that produced the majority in this case. I'm not a fan, but it's a fairly narrow holding. Thomas' concurrence went *much* further - he wanted to reverse Tinker, the Vietnam-era case establishing that students enjoy fairly broad First Amendment protection even within the schoolhouse walls. Thomas argued, much as he does here, that kiddos ought properly to enjoy almost no First Amendment protection at all.

In short, the dissent is classic Thomas, and the opinion is actually pretty normal for Scalia - the guy is pretty dismal in some regards, but a strong First Amendment advocate.
posted by Mr. Excellent at 9:08 AM on June 27, 2011 [18 favorites]

The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.

I don't understand what this has to do with anything. Even if parents have absolute dominion over their children, and can therefore prohibit their children from playing violent video games, what does that have to do with whether or not the government can prohibit children from playing violent video games?

If anything, "parents have absolute control over their children" seems like an argument against governmental control over children, not an argument for governmental control over children.
posted by Flunkie at 9:18 AM on June 27, 2011 [2 favorites]

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” [...] “its meaning does not alter.”

I would argue that part of the function of the SCOTUS is to interpret the constitution in the context of present day society. We know that the founders planned for the constitution to change as society advanced and new issues arose, that is why we can amend the thing. We can't be asked to change pass an amendment every time that society advances in a way that might affect the interpretation of the constitution.
posted by VTX at 9:24 AM on June 27, 2011

Small wonder that Scalia once described the difference between himself and Thomas thusly: "I'm not a nut."

Are you referring to something other than this time that Scalia said "I'm not a nut"?

If you're referring to something other than that time, could I please see it?

If you are referring to that time, though: I don't see any mention of Clarence Thomas in there. Maybe Thomas fits the type of people that he's talking about, or maybe he dropped indirect references that would be obvious to people more in-the-know than I am, but there's nothing that clearly and directly says anything about Clarence Thomas at all.
posted by Flunkie at 9:32 AM on June 27, 2011 [1 favorite]

I'm confused by the way this post is framed. I don't think the OP meant the sale of videogames to adults, as worded. Of course, it really is about the sale to minors:

The appeal was a "challenge to a California law that restricts the sale or rental of violent video games to minors."

As everyone in the thread notes, this was a common-sense ruling, and Clarence Thomas is an asshat.
posted by misha at 9:35 AM on June 27, 2011 [1 favorite]

Misha, before posting I actually debated in my head the wording of "restricted to adults" vs "restricted to children" and went with the former since to me the law would have meant "the category of individuals who can purchase videogames is restricted to adults"; maybe my phrasing is due to an Anglo/Canadian/American English 'variance' or something. Nonetheless, I assume the pull quote makes it clear that yes, this was about preventing minors from purchasing violent video games.
posted by modernnomad at 9:42 AM on June 27, 2011 [2 favorites]

Lol Ebert. The guy gives violent movies glowing reviews all the time. Won't he think of the children?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:42 AM on June 27, 2011 [1 favorite]

what does that have to do with whether or not the government can prohibit children from playing violent video games?

Because to social conservatives, the government is our collective father. Wasn't there an opinion piece recently where some pundit said he was comfortable with letting the government legislate anything he "didn't want his daughter doing" like drugs or prostitution or Bong Hits 4 Jesus?
posted by muddgirl at 9:45 AM on June 27, 2011

If we had a functioning Congress, Thomas would be impeached for recent financial conduct come to light. Hiding ~$1mil of politically connected income makes every word or every opinion he's written immediately suspect. It's flat ridiculous that this guy is somehow still on the Court. And that's not even addressing his insane substantive legal "philosophy".
posted by T.D. Strange at 9:49 AM on June 27, 2011 [3 favorites]

Thank God they let us distract ourselves from the horrible corruption in the US with violent video games and obscure lewd videos.
posted by Slackermagee at 9:52 AM on June 27, 2011 [3 favorites]

I just wanted to pop in and thank modernnomad for linking to the actual opinion, instead of some ranty op-ed piece somewhere that completely distorts the opinion and its ramifications, and thereby starting off a much better MetaFilter thread as a result.

On topic, good decision by SCOTUS, well-written opinion, I thought. Yay First Amendment.
posted by Gator at 9:59 AM on June 27, 2011

This other Supreme Court decision is far more important than this link-farm-bait dog and pony show decision on video games.
posted by saulgoodman at 10:06 AM on June 27, 2011 [1 favorite]

Muddgirl: That was the Freakonomics guy (and an inane test).
posted by klangklangston at 10:06 AM on June 27, 2011

Like most people here, I'm in sympathy with the outcome, but I don't think it's an easy case, and I'm confused about some aspects of the majority opinion. In particular, I don't really understand the argument that the statute is "underinclusive." This would clearly apply if, e.g., the law applied to a specially protected class of minors and left out others for whom the supposed benefit of the law would be the same. Is a law also underinclusive if there is some other imaginable broader law which would acccomplish even more to serve the claimed compelling state interest? E.G. Burson v. Freeman held that a Tennessee prohibition against a candidate campaigning within 100 feet of the polling place passed strict scrutiny for the compelling state interest of preventing voter intimidation, and thus did not violate the First Amendment rights of the candidate. Could the Court have struck down the Tennessee law on the grounds that there exist other restrictions on campaigning, not pursued by Tennessee, which would also have served this interest? Does that create "serious doubts about whether the State is pursuing the interest it invokes?"
posted by escabeche at 10:07 AM on June 27, 2011

symbioid: "So - why is porn ok to ban and not video games? Not that I'm upset about this ruling at all. I just don't quite get the logic behind it. But then again... Sex/Violence. USA! Blah blah..."

Because the problem here wasn't the content, the problem was banning said content in only a single medium. Porn, for instance, is restricted no matter the medium. Magazines, live TV shows, animated TV shows, movies, comic books, photos and videos on the Internet, etc etc. But this law, on the other hand, regulated violence only in video games. Death and killing on Saturday morning cartoons? Okay! R-rated movies? Still not restricted by law! Hunting magazines? Fine!

It wasn't the restriction that was the problem so much as the very specific nature of the restriction (with absolutely no evidence to back it up). The real danger is that when things are done in this way, they can have subtle other effects. What if five years ago, Congress restricted violent imagery on Blu-Ray? This would have artificially pushed consumers to HD-DVD (or DVD or digital or whatever) where said violent imagery was unrestricted. I don't think anyone would argue that violence on Blu-Ray is any more dangerous than that on HD-DVD. [Insert joke about it being hard to find HD-DVD players nowadays.]
posted by Plutor at 10:08 AM on June 27, 2011 [2 favorites]

BOOM goes the dynamite?
posted by blue_beetle at 10:12 AM on June 27, 2011

So what does Thomas think about women? That they should only be reached through their husbands because Puritans were a patriarchal society?

Dumb question I know.
posted by Talez at 10:20 AM on June 27, 2011

There are several arguments going on here, under-inclusiveness refers to only banning one medium. The other argument is over whether the framing of the first amendment includes implicit carved out exceptions for things like obscenity, blasphemy, and Thomas' novel but perhaps correct interpretation that there was a restriction on speech to children.


It scares me that someone this ass-backwards with so much regressive thought could get appointed to the Supreme Court.

Was that an endorsement of such thinking or merely an explanation of it? Granted he is regressive, and I personally don't support restricting speech that includes violence (or obscenity for the most part), but he does have a point that restriction of the ideas children are exposed to was fairly commonplace at the time. From my very cursory skimming of the ruling, the weakness of his dissenting opinion is that he can neither point to a survey from the mid eighteenth century on the subject, nor case law.
posted by BrotherCaine at 10:22 AM on June 27, 2011

posted by Mr. Excellent at 5:08 PM on June 27

Are you...are you my anti-matter duplicate?
posted by Mr. Bad Example at 10:23 AM on June 27, 2011 [2 favorites]

Porn, for instance, is restricted no matter the medium.

As mentioned upthread, this is not true. Pornography is protected by the First Amendment. Obscenity is not, but these two things are not the same. Obscenity is decided based on local community standards.

That said, boy howdy is Clarence Thomas a complete nut job.
posted by DiscourseMarker at 10:25 AM on June 27, 2011

grr, need to learn how to close tags, sorry. grr.
posted by DiscourseMarker at 10:26 AM on June 27, 2011

Wasn't there an opinion piece recently where some pundit said he was comfortable with letting the government legislate anything he "didn't want his daughter doing" like drugs or prostitution or Bong Hits 4 Jesus?

I think you're probably talking about this piece, which was discussed on MetaFilter here, and which I don't think says what you think it said.
posted by not that girl at 10:43 AM on June 27, 2011

LEVEL UP!
posted by Marisa Stole the Precious Thing at 10:47 AM on June 27, 2011

Regarding pornography, I'll just point out that while censorship of sexual materials (and defining "obscene" materials mostly as sexual ones) is the current law of the land, it has never been exactly unanimous.

Throughout the series of cases which moved the United States from traditional English common law regarding obscenity to the "Miller test" that reigns today, there were a number of Justices who took a strong stance in favor of the First Amendment protecting obscene speech.

E.g., both Hugo Black and William O. Douglas wrote in their dissent to Roth v. United States that the First Amendment, since it doesn't contain an exception, protects obscene speech. As far as I know both of them held that stance for the rest of their judicial careers and felt rather strongly about it. Whenever people get down on Constitutional literalism I like to point this out; their argument was basically "the Founders were aware of obscenity, the First Amendment doesn't say anything about 'except for obscene speech', therefore we have no reason to assume that they didn't mean to include it, therefore it's protected, QED, STFU, pass an amendment if you don't like it."*

It's also why I have infinitely more respect for Scalia than I do Thomas; Scalia actually appears to be trying to be a literalist in the tradition of Black and Douglas, at least most of the time**, while Thomas seems suspiciously like a socially conservative ideologue. Scalia's literalism may lead to him occasionally taking positions that seem a little perverse ("well, the Constitution doesn't say you can't execute the mentally handicapped, go nuts"), but he also seems to generally come down on the logical, literal, and expansive side of the First Amendment. I actually appreciate his literalist perversity at times; if a judge or justice isn't willing to fly in the face of public opinion in order to hold a hard line, then you're inevitably going to have hard cases making bad law.

So anyway, I'm glad to see the Court come down the way it did on video games, and think that it's a slight nod to, if not actually a validation of, the long-standing (if only in various dissents) expansive reading of the First Amendment. Perhaps someday we'll get a court with the gonads to overturn Miller in a way that would make Black and Douglas proud. But for now, squashing the idea that obscenity laws can be extended arbitrarily further, e.g. to include violence as well as sex, is better than the alternative.

* Slight paraphrasing.
** With notable exceptions. Lawrence v. Texas is the really glaring one, and I don't think you can come up with any legitimate line of reasoning for his dissent there, aside from just being generally squicked out about buttsex. This appears to be his great flaw as a justice and perhaps also as a human being.
posted by Kadin2048 at 10:47 AM on June 27, 2011 [9 favorites]

not that girl's summary:

"On reflection, I realize that I am more comfortable with something in this gray area being illegal if it is something I would not want my daughter to do"

My summary of his emotional rationalization for government legislation, if not identical, is very close. Whether or not he's logically OK with his own emotional rationalization doesn't change the fact that it's a common rationalization.
posted by muddgirl at 10:48 AM on June 27, 2011

In other words, I don't think I said what you think I said.
posted by muddgirl at 10:50 AM on June 27, 2011

So what does Thomas think about women?

They have public hair.
posted by Flunkie at 10:55 AM on June 27, 2011 [2 favorites]

glaucon: “I really don't understand individuals who spend a lot of capital fighting this all the way to the Supreme Court.”

kmz: “Do you mean the state of California or video game merchants? Cause video games are a multi-billion dollar industry these days.”

Yeah, but the state of California sure as hell isn't.

AMIRITE?
posted by koeselitz at 11:03 AM on June 27, 2011 [1 favorite]

errrrr, pubic
posted by Flunkie at 11:09 AM on June 27, 2011

As for Thomas, I heard an anecdote on NPR the other day that sums him up pretty well. They were interviewing an author who had written a new book for which he had been granted a great deal of acces to the justices. Some of them were talking about their favorite authors and how a good legal opinion compares to them. Most of them talked about reading classics like Voltaire and Shakespeare but when it came to Thomas, he compared good legal writing to an episode of "24". So far I haven't been able to find a transcript but I will keep looking.
posted by TedW at 11:14 AM on June 27, 2011

Most of them talked about reading classics like Voltaire and Shakespeare but when it came to Thomas, he compared good legal writing to an episode of "24".
posted by TedW

When Thomas writes his opinions, he never sleeps. Also you being to wonder just when he's finding time to use the bathroom.
posted by haveanicesummer at 11:24 AM on June 27, 2011

DiscourseMarker: " As mentioned upthread, this is not true. Pornography is protected by the First Amendment. Obscenity is not, but these two things are not the same. Obscenity is decided based on local community standards."

I'm pretty sure these are just semantics. But maybe I'm wrong. Can you give me an example of something that is pornographic but not obscene, and therefore would be okay to sell to children or broadcast on public access television? The only example that I can think of that kind of meets those criteria is Sex Ed materials, but I'm pretty sure 99% of adults would agree that's not pornography.

Yes, I'm sure some people are turned on by sterile Sex Ed materials, but if that was the bar we had to meet, then shoes would be restricted.
posted by Plutor at 11:28 AM on June 27, 2011

I'm pretty sure these are just semantics. But maybe I'm wrong. Can you give me an example of something that is pornographic but not obscene, and therefore would be okay to sell to children or broadcast on public access television?

But that's not what "pornographic but not obscene" means, within the context of US law.

If you try to sell or broadcast something that the government deems obscene, they can bring you up on charges. This is true regardless of whether you try to sell or broadcast it to children. For example, purveyors of scat porn, extreme violence porn, and such sometimes get brought up on obscenity charges, for doing nothing more than selling videos to consenting adults; children aren't in the equation at all.

So an example of "pornographic but not obscene", in this context, would be, I dunno, your favorite porn website.
posted by Flunkie at 11:35 AM on June 27, 2011 [1 favorite]

OK, I found it; I misremembered the background, but the gist is the same:

As Chief Justice John Roberts puts it: the only good way to learn about writing is to read good writing. And it turns out that many of the justices take their inspiration from great literature. Justice Stephen Breyer likes Proust, Stendahl, and Montesquieu. Justice Anthony Kennedy loves Hemingway, Shakespeare, Solzenitsn, Dickens, and Trollpe. Justice Clarence Thomas says a good legal brief reminds him of the TV show "24," and Justice Ruth Bader Ginsburg says one of the great influences on her writing was her European literature professor at Cornell, Vladimir Nabokov, yes, the same Nabokov who later rocked the literary world with his widely acclaimed novel "Lolita."
posted by TedW at 11:37 AM on June 27, 2011 [8 favorites]

Justice Clarence Thomas says a good legal brief reminds him of the TV show "24,"

You bring shame to the entire profession.
posted by kafziel at 11:55 AM on June 27, 2011

Justice Clarence Thomas says a good legal brief reminds him of the TV show "24,"

I'm waiting for the day Thomas finally speaks during an argument day and just says "beep, BEEP, beep, BEEP, beep, BEEP."
posted by Mister Fabulous at 11:59 AM on June 27, 2011 [1 favorite]

Can you give me an example of something that is pornographic but not obscene, and therefore would be okay to sell to children or broadcast on public access television?

See YouTube videos tagged for 17+ users. It seems like they allow pornography that doesn't show nudity (or obscenity?). I'm not really sure about their policy, but search youtube for, well, "shoe," and you will surely find some erotic videos in there.

Of course, if it doesn't have nudity is it even pornography or the more-accepted-yet-impossible-to-define "erotica?"

But I have certainly seen erotic/pornographic content on public-access television. That's all that was worth watching on it in SF in the '90s. I have a very vague memory of a guy in a viking hat reviewing porn on Channel 26... which I believe is now SFGTV and offers no public-access broadcasting at all. :(

I really have a hard time accepting a distinction between pornography, erotica, and plain old "art." I kinda feel like valid aesthetic and artistic philosophies are varied enough to accept all sorts of content that some people, even the majority of people, think is "obscene."

I've never really quite understood the legal basis for making obscene content illegal, I suppose.
posted by mrgrimm at 12:08 PM on June 27, 2011

I'm pretty sure these are just semantics. But maybe I'm wrong. Can you give me an example of something that is pornographic but not obscene, and therefore would be okay to sell to children or broadcast on public access television?

It's not semantics, and you are conflating a lot of different things.

With regard to terrestrial, over-the-air TV and radio, they are governed by the FCC indecency> rules, which disallow the broadcast of indecent material, which would include pornography, only between the hours of 6am and 10pm. So therefore you can, if you wanted to, broadcast porn after 10pm. It's just that stations pretty much never, ever choose to do so. In addition, these rules DO NOT apply to ANY cable station, so again, TNT, AMC, etc could all show porn, or say "fuck fuck fuck fuck fuck" all day long if they wanted, they just generally choose not to, my guess would be for fear of advertiser and social pressure.

The FCC does note that it is a violation of federal law to broadcast obscene material at any time, but crucially does not define obscenity.

That's because, as per Miller v. California, obscenity was defined thusly:

-Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
-Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
-Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[3]

Plenty of pornography falls outside this definition,and specific works have to be decided on a case-by-case basis. There is no sweeping category.

SCOTUS objected to the video game law, in part, because violence is never mention in the Miller test. So there is no precedent for considering it to be obscenity.
posted by DiscourseMarker at 12:18 PM on June 27, 2011 [2 favorites]

Flunkie: "If you try to sell or broadcast something that the government deems obscene, they can bring you up on charges. This is true regardless of whether you try to sell or broadcast it to children."

Okay, then obscenity is a completely useless analogy in this case. Violent imagery in video games wasn't illegal to sell period. It was illegal to provide to a certain subclass of people.

So what you're saying is that the sale of pornography to minors is not restricted by US law?
posted by Plutor at 12:28 PM on June 27, 2011

Okay, DiscourseMarker did a good job of explaining it there. Pornography is a lot like movie ratings, it sounds like. And alcohol advertisements. They're sort of self-restricted by the market, not by actual binding law.
posted by Plutor at 12:29 PM on June 27, 2011

"written by Scalia J., joined by Kennedy, Ginsburg, Sotomayor, and Kagan, JJ."
Huh, you don't see that every day.

Close to the same group (replace Kennedy with Thomas) also ruled today to require that evidence of lab tests in criminal trials be presented by the person who signed the analysis. That may sound minor, but in practice, that's going to put a HUGE burden on the state for prosecuting drug crimes. As I told my friend, "I guess no one's going to jail in DC anymore.'

[then Roberts, Scalia, Thomas, Alito and Kennedy had to go and release the worst decision in my lifetime. Fucking money-speech bullshit.]
posted by Navelgazer at 12:43 PM on June 27, 2011 [4 favorites]

Flunkie (...) So what you're saying is that the sale of pornography to minors is not restricted by US law?

What? No.

What I'm saying is that the difference between "pornographic" and "obscene" in US law is not that things that are "pornographic but not obscene" are "okay to sell to children or broadcast on public access television", as you seemed to imply that the difference was.
posted by Flunkie at 12:55 PM on June 27, 2011

So, gay elf sex is okay, right? RIGHT?
posted by PapaLobo at 1:01 PM on June 27, 2011

Flunkie: You may want to track down the book "The Nine" by Jeff Toobin, which is about the Supreme Court.

In an interview with Terry Gross, Mr. Toobin related this story:

Mr. TOOBIN: Clarence Thomas is not just the most conservative member of the Rehnquist court or the Roberts court. He's the most conservative justice to serve on the court since the 1930s. If you take what Thomas says seriously, if you read his opinions, particularly about issues like the scope of the federal government, he basically thinks that the entire work of the New Deal is unconstitutional. He really believes in a conception of the federal government that hasn't been supported by the justices since Franklin Roosevelt made his appointments to the court. You know, I went to a speech that Justice Scalia gave at a synagogue here in New York a couple of years ago, and someone asked him, `What's the difference between your judicial philosophy and Justice Thomas?' I thought a very good question. And Scalia talked for a while and he said, `Look, I'm a conservative. I'm a texturalist. I'm an originalist. But I'm not a nut.' And I thought that...

(emphasis mine)

While I can't find the interview - all links I found to it point to a lexis/nexis page no longer there - it's referenced a this page at HuffPo from 2007.
posted by mephron at 1:02 PM on June 27, 2011

Close to the same group (replace Kennedy with Thomas) also ruled today to require that evidence of lab tests in criminal trials be presented by the person who signed the analysis.

That's pretty much how police labs work in Canada. There's a senior person who reviews and signs off on the data. They don't do the work themselves, but supervise the techs and take responsability for their work, like a professional engineer who may sign drawings prepared by draftspeople. Seems to work ok, though they do spend a lot of time in court.
posted by bonehead at 1:02 PM on June 27, 2011

On the obscenity vs. pornography front, the way I had it explained to me by a first amendment expert was, when it comes to restricting distribution of material, there's "obscenity" and there's "harmful to minors." Lots of stuff that isn't "obscene" under federal law may fall under state statutes restricting the sale to minors of material that is categorized as "harmful to minors." This would be how a Barnes & Noble in the Bible Belt gets busted for letting someone under 18 buy a copy of Playboy, for instance. It's not obscene, but it may be harmful to minors, and the courts get to hash that out at the state level.

Anyone got an opinion on whether I'm understanding that correctly?
posted by Joey Bagels at 1:49 PM on June 27, 2011 [1 favorite]

So Valve has updated the Steam Store in celebration (posterity screenshot).
posted by boo_radley at 2:27 PM on June 27, 2011 [3 favorites]

Thomas not emphasizing language and literature so much might have something to do with English being his second language. He was raised speaking Gullah, and apparently still felt unpolished in English in his 20s.

On the other hand, according to Wikipedia, he was also "influenced by the works of Ayn Rand", so I'm not willing to cut him too much slack here.
posted by Joakim Ziegler at 2:39 PM on June 27, 2011

This is awesome.
If only we had something similar in Australia...
posted by Lovecraft In Brooklyn at 3:33 PM on June 27, 2011

Going back a ways in this thread, I think one of the reasons Thomas and Scalia are lumped together so regularly here is because their opinions seem so obviously wrong to many MeFites, and yet they concur with each other.

There are infinitely many ways to be wrong, and few ways to be right. It's not shocking when two people agree that 1+2*3=7. It's surprising when you find two people who think that 1+2*3=9, but at least you can see how they might have gotten the same wrong answer independently.

Scalia and Thomas, by comparison, seem to often agree that 1+2*3=pancreas.
posted by Riki tiki at 3:58 PM on June 27, 2011

I was blogging on this earlier and this question came up in my mind:
I could take my kid to an R-rated movie that contained full frontal nudity and simulated sex, as well as other content. However even with a note from me giving permission, he couldn't buy a playboy that features exactly the same content. Isn't that what the majority is calling overinclusive in the statute at hand? While obscenity is obviously in its own class, sexual content that is not obscene should probably get the same treatment that the court discusses here, which means that a statute punishing sale of Playboy to a minor would be overinclusive, right?

(IAAL, but not a 1st Amendment specialist, this is a sincere question)
posted by nickgb at 5:15 PM on June 27, 2011 [1 favorite]

Scalia is one of my secret favorite Supreme Court justices. Even when you disagree with him, his writing is still superb. When Kennedy lines up with the liberal bench, my reaction is kind of "meh." But when Scalia sides with the liberal bench on issues regarding First and Fourth Amendment rights, I'm all like "Fuck yeah!"
posted by jabberjaw at 5:24 PM on June 27, 2011 [2 favorites]

I could take my kid to an R-rated movie that contained full frontal nudity and simulated sex, as well as other content. However even with a note from me giving permission, he couldn't buy a playboy that features exactly the same content.

But you can't send your kid to the movie theatre with a note saying "please let my son/daughter see this R-rated movie, it is totally okay!" On the flip side, I'm pretty sure no one's going to arrest you for buying a Playboy and then giving it to your kid.
posted by chrominance at 5:30 PM on June 27, 2011 [2 favorites]

But you can't send your kid to the movie theatre with a note saying "please let my son/daughter see this R-rated movie, it is totally okay!" On the flip side, I'm pretty sure no one's going to arrest you for buying a Playboy and then giving it to your kid.

Yeah, I could've done a much better job explaining that example. The ratings system is all voluntary and not government action, but regardless it's legal for a child to view sexual movies in some circumstances (with a parent accompanying, for example) but it is illegal for a store to sell playboy to the same kid. To me, that is the state "telling parents what to approve", as Scalia found to be overinclusive in the current case. (Scalia said the statute wrongly prohibited sales to kids whose parents didn't care.)

As an aside, I remember when I was younger, my local video store actually kept files saying which of us were allowed to rent R rated movies without a parent handy. Getting that permission slip signed was a ticket to popularity early on...
posted by nickgb at 7:35 PM on June 27, 2011

I'd say the big difference is that the MPAA is self-policing specifically to keep the law from having to get involved in their business at all. For that matter, so is the games industry (hence the ESRB) but as the gaming populace is smaller and far more remote from lawmakers and judges than, say, the moviegoing public, we needed something like this, which certainly wasn't a sure thing, to give it first amendment protections.

Moreover, though, the common law does draw a distinction between sex and other objectionable material. Obscenity is that which appeals to the prurient interest, but lacks any serious political, scientific, artistic or literary value - the Miller Test mentioned above. "Prurient Interest" has always been interpreted to mean "base sexual urges."
posted by Navelgazer at 7:58 PM on June 27, 2011

So - why is porn ok to ban and not video games? Not that I'm upset about this ruling at all. I just don't quite get the logic behind it. But then again... Sex/Violence. USA! Blah blah...

Well, part of it is that they weren't banning all violent media, just video games. If they had banned the selling of all violent content, including movies and TV shows then they might have had a case. But no way would that happen in the home of Hollywood.
posted by delmoi at 10:07 PM on June 27, 2011

And, again, what I said above. Obscenity is relegated to porn. It's not that the court has been diligently banning porn (you are on the internet. Look around. Porn access is all but unrestricted) so much as they have been consistently refusing to expand the boundaries of what may be considered "obscene."
posted by Navelgazer at 10:17 PM on June 27, 2011 [1 favorite]

I've never really quite understood the legal basis for making obscene content illegal, I suppose.

That's because, when you get right down to it, the answer is mostly "tradition."

Really that's the crux of the whole thing; if you dig down into the pre-Miller decisions, it was all about breaking with legal tradition that was rooted in English common law. I can't tell you much about obscenity law once you get across the pond, but I'm sure it's a topic that's been written about, if you were interested. But that's where it's derived from.

The debate in the Court has historically been between textualists like Black and Douglas, who like to point out that the Constitution is completely silent on the concept of "obscene" speech even though it was clearly a familiar concept to the Founders, and more chickenshit moderate members of the Court who, as far as I can tell, just aren't willing to be the ones who rock the boat that much. And so, over the course of the 20th century, various "tests" for what is obscene (and therefore, under the dominant legal theory, not protected by the First Amendment) have been invented. In general I think you can say that the general trend has been towards progressively narrower definitions of obscenity, although there has been backsliding here and there.

[...] the sale of pornography to minors is not restricted by US law?

Yes, it's restricted (more properly, the Court has said that restrictions are allowable); the critical case for that aspect of things is Ginsberg v. New York. This is where the separate distinction of material 'harmful to minors' came from. Materials in this category may not be obscene but a person can nonetheless be punished for providing or selling it to a minor.

It's kind of an interesting case because it touches on both First Amendment issues but also the rights of minors. As usual, Douglas and Black ended up on the dissent again, along with Court short-timer Abe Fortas. Douglas' dissent, to which Black joined, states: "I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of 'sin.'" (Anyone still want to argue that all textualists are social conservatives?)

Prior to Ginsberg was another interesting case, Redrup v. New York, which touches on the issue of selling pornography to minors, indirectly: it basically says that protecting minors — which was apparently the argument used to defend the laws in question — isn't sufficient justification for prohibiting the availability of materials to adults. This is a decision that I've heard referenced in discussions about online content, particularly during the wrangling over the CDA in the late 90s.
posted by Kadin2048 at 11:47 PM on June 27, 2011 [4 favorites]

Obscenity is not, but these two things are not the same. Obscenity is decided based on local community standards.

Something which appears to have no basis in the constitution as written, but I somehow suspect you'll never see any of the Supreme Court's supposed literalists advocate as a position.

I'd say the big difference is that the MPAA is self-policing specifically to keep the law from having to get involved in their business at all.

The MPAA exists, much like the old Comics Code Authority, to protect the interests of a handful of wealthy, powerful sudios and distribution networks by screwing over smaller studios.
posted by rodgerd at 2:46 AM on June 28, 2011

I somehow suspect you'll never see any of the Supreme Court's supposed literalists advocate as a position.

Um, I assume you're referring only to the current (Roberts) Court? Because, as I've sort of been saying throughout this thread, there's a long tradition of judicial disagreement over the Constitutionality of obscenity laws in the U.S., and two of the most staunch defenders of the obscene-speech-is-protected-too position did so from textualist (aka literalist) grounds. There's a good strong tradition of textualist defense of the First Amendment against encroaching obscenity laws.

But even if you look only at the current Court, I think you are being rather uncharitable. Scalia in particular has a pretty good record on First Amendment issues; he sided with an expansive reading of the First Amendment—consistent with his claims to be a textualist—in both the current case and also Reno v. ACLU, which struck down the CDA. (And made him pretty unpopular in social-conservative circles for a while.) His Second Amendment reading is about as textualist as you can get, too.

Is he a match for Douglas or Black from the Warren Court years? No; at least I've never read anything where's he's advanced a First Amendment position quite as principled as theirs, and on a personal level he's pretty clearly homophobic as hell. But I think he's probably about as much a textualist as you can get with the current confirmation process, which pretty much attempts to select for milquetoast inoffensiveness. We'll be lucky to even get as strong a textualist as him in the future, I'm afraid, to say nothing about another Hugo Black.
posted by Kadin2048 at 9:14 AM on June 28, 2011 [1 favorite]

it's legal for a child to view sexual movies in some circumstances (with a parent accompanying, for example) but it is illegal for a store to sell playboy to the same kid.

Isn't the big difference there voluntary compliance? Playboy is willing to make its content unavailable to people under the age of 17, and I doubt that many porn publishers are pushing to make their content available to teenagers. Maybe I'm wrong there.

Great info, Kadin2048. Thanks.
posted by mrgrimm at 9:42 AM on June 28, 2011

Here is an enjoyable excerpt from the court case.
posted by Obscure Reference at 9:55 AM on June 29, 2011 [1 favorite]

Daily Show: The Supreme Court has good news for the makers of graphically violent video games and bad news for the makers of Super Mario Boners.
posted by homunculus at 8:59 AM on July 1, 2011