Scalia FTW?

November 4, 2010

You know something strange is going on when Antonin Scalia weighs in on your side.  The video game industry found itself in that very position while arguing against California’s ban on selling violent video games to minors. As the New York Times reports, the justices struggled to determine how to apply the First Amendment to gaming:

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”

“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”

“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”

Are depictions of violence protected by the First Amendment?  A majority of the court appeared willing to extend protection, with Justice Alito being the most vocal dissenter.  Surprisingly, Justice Breyer argued the government should be allowed leeway to help parents protect their children from “gratuitous, painful, excruciating, torturing violence upon small children and women.”’s Stephen Totilo laid out the ramifications of upholding California’s law:

A decision in favor of California would make video games the only type of media content in the United States that can be illegal to sell to children based on severity of violent content, a decision that would affirm that games have distinct affects on a young audience that other forms of entertainment do not — or that that the speech in games is not seen meriting the same protection as that in other media.

Expect a decision some time before the court’s summer recess in June 2011.

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