Ban on Violent Video Games for Minors Struck Down

By Kenneth Jost
Supreme Court Editor, CQ Press
      States cannot ban the sale or rental of violent video games to minors, the Supreme Court ruled in an end-of-term decision on Monday that strongly reaffirmed First Amendment rights for juveniles.
      The 7-2 decision struck down a 2005 California law that Justice Antonin Scalia called “the latest episode in a long series of failed attempts to censor violent entertainment for minors.” Noting the violence in children’s literature ranging from fairy tales to comic books, Scalia called the law “unprecedented and mistaken.”
      In a second important ruling on Monday, the court struck down an Arizona law that provided matching funds for candidates participating in the state’s public campaign financing system. The measure, approved by Arizona voters in 1998, raised the public subsidy for candidates running against higher-spending opponents. In an opinion by Chief Justice John G. Roberts Jr., the court held, 5-4, that the law unfairly burdened the political speech rights of privately funded candidates.
      The court issued the rulings and two other decisions that limited U.S. courts’ jurisdiction over foreign manufacturers in product liability suits as it ended the 2011 term and began a three-month recess. The justices will reconvene on the traditional first Monday in October with a docket that includes 40 cases so far, including 11 granted review on Monday. Among the new cases to be reviewed are the government’s effort to reinstate the Federal Communications Commission’s ban on so-called fleeting expletives on television (FCC v. Fox Television Stations, 10-1293).
      Scalia spoke for a mostly liberal majority in the video games case, Brown v. Entertainment Merchants Association. The ruling struck down the law because it represented what Scalia called an unjustified attempt to create a new exception to the general First Amendment rule against censorship.
      The law failed to survive the constitutional standard known as strict scrutiny, Scalia said, because California had failed to show that exposure to violent video games had harmful effects on minors. He also discounted the state’s other main rationale for the law — that it helped parents supervise their children’s use of video games.
      Four justices joined Scalia’s opinion: liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan and the moderate-conservative Anthony M. Kennedy, traditionally a strong First Amendment supporter. In an opinion concurring in the result, conservative Justice Samuel A. Alito Jr. said he would have struck down the law as vague but left other issues to be decided. Roberts joined his opinion.
      Justices Clarence Thomas and Stephen G. Breyer dissented in separate opinions. Thomas, part of the court’s conservative bloc, argued that the First Amendment, “as originally understood,” did not give minors speech rights except through their parents. Breyer, a liberal who takes a pragmatic approach to First Amendment issues, said the California law imposed only “a modest” restriction on speech and was justified as an effort to help parents limit their children’s exposure to “potentially harmful, violent, interactive material.”
      The rulings on Monday ended a predominantly conservative term that saw the justices shut down a massive sex-discrimination lawsuit against the giant discount retailer Wal-Mart and limit lawsuits against mutual funds and generic drug manufacturers. The court upheld a tough Arizona law penalizing employers who hire undocumented immigrants and blocked states from suing electric utilities in federal court to reduce emissions of greenhouse gases.
      In criminal law cases, the court issued its third ruling in five years broadly limiting the use of the exclusionary rule to keep evidence out of criminal trials if obtained in illegal searches. It also blocked a former Louisiana prisoner from suing the New Orleans district attorney’s office for prosecutorial misconduct that kept him on death row for 14 years because of a wrongful murder conviction later overturned.
      Against the string of conservative rulings, the liberal justices’ most important victory came in a decision that ordered California prisons to reduce their population by as many as 30,000 inmates over a five-year period. In an opinion by Kennedy, the court said prison overcrowding resulted in “grossly inadequate” medical care that amounted to cruel and unusual punishment under the Eighth Amendment. Dissenting justices argued that releasing thousands of inmates would endanger public safety.
      Many of the most controversial rulings came in 5-4 decisions that featured a conservative bloc of four Republican appointees led by Roberts and a bloc of four predominantly liberal Democratic appointees, including the two justices named by President Obama: Sotomayor and Kagan. Kennedy, appointed by President Ronald Reagan in 1987, held the balance of power between the two blocs, most often voting with the conservatives.
      Kagan, in her first term on the court and her first year as a judge, generally lined up as predicted with the court’s liberal wing. But she had to recuse herself in 28 cases, more than one-third of the total, because she had worked on them in her year and a half as solicitor general.

      For background, see Sarah Glazer, "Video Games," CQ Researcher, Nov. 10, 2006 (subscription required).