On Monday, the Supreme Court decided Brown v. Entertainment Merchants Association , striking down on First Amendment grounds a California statute prohibiting the sale of certain violent video games to minors without parental consent. The configuration of Justices was unusual: the majority opinion was written by Justice Scalia and was joined by Justice Kennedy and three of the Court’s liberals (Justices Ginsburg, Sotomayor, and Kagan), while Justice Alito and Chief Justice Roberts concurred in the judgment on much narrower grounds, and Justices Thomas and Breyer dissented, albeit for quite different reasons.
As Justice Alito points out, the violence in these games is astounding. “Victims by the dozen are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws,” and are “dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.” The victims “cry out in agony and beg for mercy,” and “blood gushes, splatters, and pools.” In some games, players can reenact the killings at Columbine and Virginia Tech or play at being Lee Harvey Oswald assassinating President Kennedy. In one game sampled by Justice Breyer, the player “shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head.”
Many conservatives will deplore the Court’s decision as promoting these disgustingly violent games, coarsening the culture, and undermining the authority of parents. I sympathize with this view; the decision does do all these things. It is nevertheless legally correct”and therein lies an important philosophical point.
First, the legalities . There is no serious dispute that speech depicting violence is not among those few categories of speech wholly beyond First Amendment protection”things like obscenity (meaning sexual obscenity, not “obscene” violence), incitement, and fighting words. And there is no serious dispute that this means that the California law is constitutional only if it survives strict scrutiny”i.e., only if it serves a compelling government interest by narrowly tailored means.
Simplifying somewhat, this means that the law has to advance a very important purpose confided by our system to the government and, in addition, promote that purpose by limiting free speech only to the extent truly necessary. Both parts of this test are important, because there are many important purposes that our system does not confide to the government (e.g., reaching eternal salvation) and many it does so confide (e.g., preserving democracy) that could be well served but not in a narrowly-tailored way by suppressing free speech (e.g., by banning certain political tracts).
In trying to show that the statute served a compelling government purpose, California argued, on the basis of psychological studies, that playing violent video games makes children more aggressive. Note that, even if correct, the studies did not show that playing violent video games causes children to behave more aggressively (e.g., become violent), only to register more aggression on tests designed by psychologists to assess their dispositions. That video games do not, generally speaking, cause actual violence is obvious: millions of kids play violent video games, but only a tiny percentage of them commit violent crimes, and even among those who do, most do so for reasons unrelated to video games.
But even the evidence that violent video games make children “aggressive” was equivocal. Justice Breyer, who would have upheld the law, assembled two vast arrays of peer-reviewed studies, one tending to show that violent video games make children aggressive and the other tending to show the opposite. He would have resolved the issue by deferring to the judgment of the California legislature. Justice Scalia rightly responded, however, that that is not what strict scrutiny means: under strict scrutiny, the state has to prove not that it may be right, or that there is some evidence that it is right, or that it is reasonable to think it’s right”but that it really is right. That’s what the judicial check on the legislature means here.
So, as a matter of law, I think the majority’s conclusion is well-nigh inescapable. Justice Breyer, the only Justice who seriously argues that the statute passes strict scrutiny, reaches that conclusion only by tacitly changing what strict scrutiny means. But, given how disgusting and vile these video games are, doesn’t that imply that, if the First Amendment stops government from suppressing them, there must be something wrong with our understanding of the First Amendment?
Here I come to the philosophical point. What’s wrong with these video games is not that they make children violent or criminal; there is no evidence for that, and the defenders of the statute talked about the games making children “aggressive” only because they knew they would have to justify the law in terms of a compelling government interest, such as suppressing violence and so, perhaps, the “aggressiveness” that might lead to violence.
What’s wrong with these games, rather, is that they are disgusting and vile and they tend to make people who play them disgusting and vile as well. So the real question is this: should the government have the power to suppress speech that is disgusting and vile just because it’s disgusting and vile and corrupts the morals of the young?
If you think carefully before you answer, you’ll say no, and the reason for this is that speech that a legislative majority sincerely finds disgusting and vile may turn out to be good and valuable. Reflect that the educated, cosmopolitan, highly literate Romans of the first century regarded the preaching of the Christians as disgusting and vile. The great Pliny, for example, thought that Christianity was a depraved and excessive superstition (Letter X.97, see here for Latin, here for English). If Rome had been a democracy, it would have been easy to assemble a legislative majority to suppress Christian teaching.
Now, will Mortal Kombat or Grand Theft Auto turn out as valuable as Christianity, or even valuable at all? I’m sure not. But that’s just the point: being sure is not good enough, because even when you’re sure, sometimes you turn out to be wrong. There is no principled way to make exceptions in your own favor here.
The safest course in the long run is to require much more from the government before it may limit speech than a majority’s subjective certainty that the speech is wrong, bad, disgusting, or vile. That is the principle vindicated in Brown v. Entertainment Merchants Association , and I would rather live in a coarser nation that upholds that principle, secure that my own freedom to say what others may deem vile and disgusting is protected, than in a more genteel nation that may someday take that freedom from me.
Robert T. Miller is a professor of law at the Villanova University School of Law.
RESOURCES
Brown, Governor of California, et al. v. Entertainment Merchants Association et al. [PDF]
Charles J. Chaput, O.F.M. Cap., Violent Video Games and the Rights of Parents
Gregory K. Laughlin, Wrong Today, Perhaps Right Tomorrow
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