by Joseph Miller, Esq.
The Supreme Court’s recent decision to strike down a California law banning the sale of violent video games to children was not surprising in light of the Court’s First Amendment doctrine or the Roberts court’s business-friendly stance on corporate speech. For children of color, the need for data establishing a nexus between violent video games and real-world violence is even more compelling as children of color spend more time playing video games than white children. In addition to seeking to address the effect of video game violence on children’s psyches, state legislators should also seek to address the impact of popular video games on academic achievement.
At first glance, it is difficult to conclude that the Court’s decision was based on ideology rather than the letter of the law: While the Roberts court has demonstrated a proclivity for protecting corporate and business interests (see, e.g. Wal-Mart v. Dukes, Citizens United v. Federal Election Commission, and AT&T Mobility v. Concepcion), Justice Scalia’s majority opinion in yesterday’s Brown v. Entertainment Merchants Association decision was actually joined by the two justices widely considered to be the Court’s most liberal—Justices Ginsburg and Sotomayor. Nevertheless, Chief Justice Roberts and Justice Alito issued concurring opinions that can be read as a refinement of their doctrine protecting corporate speech.
The majority analyzed California’s state law from a strict scrutiny point of view. To pass Constitutional muster, state laws abridging fundamental rights, such as the right to free speech and freedom of expression, must address a compelling governmental interest and must be narrowly tailored via the least restrictive means for achieving that interest. In the context of free speech, this means that the state law in question must be designed to prevent speech that harms the compelling interest at stake. Here, the interest advanced by the State of California was to protect minors from violent content in video games. However, the majority reasoned that the scientific studies presented by the State of California to justify the statute did not prove a direct connection between violent video games and the asserted harmful effects on children. Writing for the majority, Justice Scalia further stated that the California law was not the least restrictive means that could have been advanced because it was “under inclusive” — while the California law restricted the speech of game developers, it did not restrict violence in other media targeting children, such as children’s books and television shows.
Chief Justice Roberts and Justice Alito deliberately avoided the “broader” issue of strict scrutiny, choosing to focus instead on whether the California statute provided adequate notice to game developers as to the standards that determine which content is too violent and which is not. Thus, not only must a state law even remotely abridging corporate speech meet the strict scrutiny standard of review, such laws must be so specific as to require legislators to put themselves in the shoes of corporate speakers trying to determine what kinds of speech are prohibited.
Such was the disposition of the majority opinion and the concurrence, neither of which were particularly surprising or groundbreaking. The strict scrutiny test itself remains largely unchanged, and the notion that legislators must consider the First Amendment from the point of view of speakers other than individuals is a bedrock principle, especially in light of Citizens United—this decision simply solidifies it.
Still, we are left with considerable uncertainty as to whether violent video games actually harm children, and clearly this is a matter that requires further research. This issue is particularly important for children of color. Last month, Northwestern University released a study that found that, on average, white children spend the least amount of time per day playing video games (:56), compared to blacks (1:25), Hispanics (1:35), and Asian Americans (1:37). Not only could violent video games potentially lead to real violence, more time spent playing video games necessarily means less time studying. Additional research and evidence is needed that firmly establishes these links, so that states can make the case for restricting the sale of video games to minors.