Merged SCOTUS strikes down video game law

cwalner said:
*Even though Beyer's dissent included evidence to support that such laws protect children, I am not aware of any exception to the first amendment based on efficacy of results.
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Supreme Court precedent holds that laws affecting speech will be upheld -- even in the absence of an "exception" -- if they are narrowly tailored to serve a "compelling government interest." See the beginning of Section III of the majority opinion, on page 11.

Breyer's citation to the psychological evidence is relevant to that point. I agree with the majority that it falls very far from meeting the high burden the government needs to satisfy under strict scrutiny (and there are other problems with the statute and Breyer's analysis in my opinion), but I don't think that makes it illegitimate or ideological. (Though apparently some of that evidence was not in the record.)
 
KingMerv00 said:
Here's the opinion. I gave it a skim because I'm a legal dork.

The Majority (written by Scalia) - Violence isn't doesn't meet obscenity exception to the 1st Amendment, therefore the law is unconstitutional. The precedent continues: Boobs are more offensive than beheadings.

Alito's Concurring Opinion - Strikes down the law on vagueness grounds. He explicitly leaves the door open for similar laws in the future if they are worded more clearly.

Breyer's dissent - Is OK with the law because he thinks violent video games might be particularly dangerous to a child's upbringing. He includes an appendix with dozens of peer-reviewed articles for both sides of the argument.

Thomas's dissent - Is OK with law because he believes parents have an near absolute right to filter communication to their children. Talks a lot about Puritan history preceding the Constitution and the zeitgeist of the "founding generation". This man continues embarrass himself.
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You seem to have a good understanding of the law.
The Court held that the law imposes a restriction on the content of protected speech and cannot satisfy strict scrutiny.
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So how does a state law prohibiting the sale of violent video games to minors violate free speech. Is there a point where the violence is too great and the law would be allowed. What if the purchaser is 11 years old does that change things, can pornography to minors be against the law? Obviously there is some dispute
 
One thing the opinion doesn't do is explain why sexual images should be treated differently than violent ones. They just accept as a starting point that obscenity can be regulated but violence (in general) can't.

It bothers me that they refused a chance to go back to the beginning and ask whether the law has evolved in a way that makes sense overall. Their argument "this is what the law says" is correct. But is the law right?

I doubt the question would ever even occur to Scalia.



ETA: I enjoyed this sentence, "There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable."
 
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Loss Leader said:
One thing the opinion doesn't do is explain why sexual images should be treated differently than violent ones. They just accept as a starting point that obscenity can be regulated but violence (in general) can't.

It bothers me that they refused a chance to go back to the beginning and ask whether the law has evolved in a way that makes sense overall. Their argument "this is what the law says" is correct. But is the law right?

I doubt the question would ever even occur to Scalia.
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Seconded, obscenity laws are outdated and vague but you are unfairly targeting Scalia. None of the justices decided to challenge the obscenity precedents.
 
KingMerv00 said:
Seconded, obscenity laws are outdated and vague but you are unfairly targeting Scalia. None of the justices decided to challenge the obscenity precedents.
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I would argue that no targeting of Scalia is unfair.
 
eeyore1954 said:
I will. I guess flattery won't always get you everywhere. Although according to Websters it wasn't flatter because it was not insincere or excessive.
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Flatter away, I won't stop you. :D

Hope you don't think I was being short with you. I suggested you read it because you will get a better understanding of the courts' reasoning if you read their words for yourself. Summaries can be good but they are always incomplete.
 
This is from a review on the decision

Most of the other Justices treated the California measure as much too broad and thus, if upheld, serving as an invitation to go after violence in movies and cartoons, books and comic books, and virtually every other medium of expression.

Justice Ruth Bader Ginsburg, for example, told Morazzini: “If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s Fairy Tales."
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Why cut it off at video games? Certainly there are comics that I feel should not be sold to young children. Although videos games today have an air of realism that I believe can be dangerous for young children. Grimms Fairy Tales? where do you draw the line on what violence is allowed.


What I don't understand or don't agree with is
The most basic of those principles is this: “[A]s a generalmatter, . . . government has no power to restrict expres-sion because of its message, its ideas, its subject matter, orits content.”
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how is expression being restriced? The video game manufacturers are free to make the games it is just that minors are not allowed to purchase.
 
eeyore1954 said:
how is expression being restriced? The video game manufacturers are free to make the games it is just that minors are not allowed to purchase.
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The law restricts the speech of the manufacturer and the children (yes children have free speech rights). To quote the majority:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it isseriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal isnot cured by the underbreadth in achieving the other.Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny
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So, is the argument here that seeing a naked boob will turn any young boy into a rapist but seeing violence will not make them violent? Or is it that it will make them violent but that is still not obscene in the way a naked boob is?

Oh for the day when the idea of "obscenity" is left behind for good.
 
Travis said:
Or is it that it will make them violent but that is still not obscene in the way a naked boob is?
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Scalia seems unconvinced that video games makes children violent but doesn't make a definitive statement on the matter since it wasn't necessary to do so.

Oh for the day when the idea of "obscenity" is left behind for good.
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Right there with ya, buddy.
 
Travis said:
So, is the argument here that seeing a naked boob will turn any young boy into a rapist but seeing violence will not make them violent? Or is it that it will make them violent but that is still not obscene in the way a naked boob is?
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Not really. I mean, that may be some people's argument, but it's not how the Court explains it.

Obscenity is deemed an "exception" to the First Amendment. It doesn't get protection, so governments can more or less regulate as it wishes (subject to any other Constitutional limitations). So we don't even get into the question of "narrowly tailored" or "compelling governmental interest," such as what the effects of obscenity on the viewer is supposed to be, or what harm it causes. (OK, I suppose if someone was to challenge the continued validity of treating obscenity as an exception, some Justices might make an argument along those lines. But realistically the Court isn't going to be granting cert on such a challenge any time soon.)

Oh for the day when the idea of "obscenity" is left behind for good.
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While it's hard to say exactly where the lines are, generally speaking, "a naked boob" is not obscene.

It's important to distinguish between the Court's definition of "obscenity" and how the term is often used colloquially. The Court uses the Miller test of (going on recall here) (1) appeals primarily to the prurient interest; (2) violates contemporary community standards; and (3) is without redeeming literary, artistic, social, etc. merit.

That's a pretty hard test to satisfy these days. Once upon a time, postal inspectors in Uptight Bible Beltville would order pornographic magazines and then try to prosecute the senders under the "community standards" of Uptight Bible Beltville. Even that stopped working after a while. The internet has sort of made those "gotcha" tactics less effective.

The laws against selling pornography to minors seem to survive based on the Court's approval of statutes that tack on the phrase "to minors" to each of the Miller prongs.
 
SCOTUS rules in favor of free speech, takes up FCC next

Some good news on the free speech front:

Supreme Court strikes down California video game law

Interesting coalition: Scalia joined Kennedy, Kagan, Sotomayor and Ginsburg.

The women did not vote according to female stereotype.

"Like books, plays and movies, video games communicate ideas," said Justice Antonin Scalia in his majority opinion Monday. And he said there "is no tradition in this country of specially restricting children's access to depictions of violence. … Grimm's Fairy Tales, for example, are grim indeed."
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Good point there.

And apparently they may have something to say about the FCC too:
Court Tests Broadcast Profanity, Nudity Limits

The U.S. Supreme Court, accepting a case that will reshape the speech rights of broadcasters, agreed to decide whether federal regulators are violating the Constitution by imposing fines for on-air profanities and nudity.

The justices today said they will review a lower court’s conclusion that the Federal Communications Commission’s indecency policy is unconstitutionally vague. The dispute stems from expletives uttered on two Fox network award shows and from a scene with a naked woman on ABC’s “NYPD Blue.”
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Will four-letter words and boobies be allowed on network TV? :D
 
Re the FCC issue, some of the Justices have been signalling that it's time to reconsider Red Lion and its progeny. Hopefully the distinction between "broadcast" and other media will fall by the wayside.
 
Dunstan said:
Re the FCC issue, some of the Justices have been signalling that it's time to reconsider Red Lion and its progeny. Hopefully the distinction between "broadcast" and other media will fall by the wayside.
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I'm not sure that distinction will. The airwaves are owned by the public, not so transmission lines and other media conduits (DVDs, or whatever).

I'm not saying there isn't regulatory authority for non-broadcast media, but the distinction will always exist.
 
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