Submitted by Jeremiah Hickey on June 28, 2011 - 3:58pm
First of all, I would like to thank the members of the Blogora for providing me an opportunity to contribute on the recent First Amendment decisions by the Supreme Court. Since its inception, the Blogora has been one of the most important resources for my reading, research, and teaching. Though I am not the one of the most vocal contributors, I may be one of the most avid readers.
To provide a brief background, I am an Assistant Professor in the Department of Rhetoric, Communication & Theatre at St. John’s University in Queens, NY. My research focuses on legal rhetoric, especially in relation to the conflict between rights and democracy in such areas as Voting Rights and Redistricting as well as First Amendment jurisprudence.
At the outset, I should note that I support the Court’s decision in the first case I will discuss, Brown v. Entertainment Merchants Association, Inc (EMA). Though Justice Alito and Chief Justice Roberts criticize Justice Scalia for not deciding the issue on narrow grounds, I support the extent to which Justice Scalia protects video games as an important artistic medium. While I don’t often play video games, I know how important they can be. Even Justice Breyer, who dissents in this case, praises them for their ability to develop critical thinking skills, as well as noting that the military relies on them for training. Furthermore, it is important to note that video games can provide important political messages. For example, Bioshock exists as a first person-shooter game in which the story adapts to the player’s choices in the game and, more importantly, provides a critique of Ayn Rand’s ideology.
For my first post on Brown v. EMA, I would like to focus on the pervasiveness, and acceptance, of violence in American society.
In the majority decision, Justice Scalia strikes down the California law restricting the sale or rental of violent video games to minors (under 18). He argues that video games qualify for First Amendment protection and, consequently, the restriction on violent video games constitutes an unconstitutional regulation of a particular type of speech. Noting that the US does not have a tradition of “specifically restricting children’s access to depictions of violence,” Justice Scalia strikes down the law rather than create a new exception (fighting words, incitement, or obscenity) to the First Amendment Jurisprudence.
The refusal to add a new exception develops from Supreme Court precedent that differentiates between violent speech and obscenity. Justice Scalia notes that “the obscenity exception does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’” In United States v. Stevens (2010), a case that concerns depictions of animal cruelty, the majority states that “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” While this reasoning relies upon appeal to authority --i.e. the Supreme Court says there will be no restrictions because we said there will be no restrictions--and an appeal to tradition--i.e. we cannot add a new distinction because we have never had a distinction--Scalia’s goal is to protect freedom of speech, even bad or offensive speech, from the desires of the community. The reason: communities and cultural attitudes change over time as well as conceptions of good and bad, offensive and inoffensive. To allow for that change is more important than protecting one community at one moment in time, especially when there has never been a history of banning violent speech, even speech directed at children.
Justice Scalia’s protection of violent speech exemplifies not only his view on how pervasive violent speech is in our society, but how he thinks it is important to our society.
During oral arguments, while Justice Alito said that he thought Justice Scalia wanted to know what James Madison thought about video games, Justice Scalia corrected Alito: “No, I want to know what James Madison thought about violence,” especially if there were any exceptions for speech regarding violence. Justice Scalia’s concern for Jams Madison’s thought suggests that Scalia believes Madison would have not only allowed the depictions of violence but would say it is necessary. I would argue this point for two reasons.
The first reason as to why violent speech is necessary concerns the development of virtue. In Scalia’s Republic, children learn a number of virtues, such as strength and bravery, as well as how or how not to act through reading, watching, or playing books, movies, and video games. In his decision, he notes that the, “Grimm’s Fairy Tales, for example, are grim indeed,” Justice Scalia provides example after example in which there is not only violence but violence that plays an important role in relation to the plot development or the moral of the tale. In the Grimm’s version of Cinderella, the evil step-sisters “have their eyes poked out by doves” in retribution for their cruelty toward Cinderella. It is only in our modern (read Disney) version of the tale that nothing violent happens to Anastasia and Drizella; their only punishment is to watch Cinderella marry the prince. Even this punishment is short-live since, by the third installment of Cinderella, Anastasia finds a suitor.
For the development and protection of the Republic, the virtues of strength and bravery are necessary. The classical tale of Beowulf, or its modern reincarnation as a motion picture, presents a tale that attempts to instill the virtues of strength and bravery. In a twisted way, The Sopranos and Grand Theft Auto instill the virtues of strength and bravery as well as commitment to family. Since, as Justice Scalia notes, video games communicate notions of narratives, virtues, and vices, trying to ban video games, no matter how gruesome, overlooks the lessons that minors could learn from reading books, watching television, or playing video games.
Furthermore, standing up for the protection of rights serves as another important lesson for citizens of Scalia’s Republic. While the decision seeks to protect the content of video games, it also provides a lesson that rights are important, especially when their exercise faces threats by members of a community. Though this decision may ask citizens to develop a “thick-skin” when they face speech that may be “bad” or “offensive,” the Republic will be stronger knowing that citizens will be defending fundamental rights.
In his dissent, Justice Thomas argues that the Republic requires the cultivation of virtuous citizens. The snarky but serious response to Justice Thomas would be that, at times, the Republic requires soldiers to defend it and, with today’s video games, these soldiers may do a better job of protecting the Republic. Though Justice Thomas’s decision concerns the rights of parents, a subject I will discuss later in the week, he does seem to suggest that only “good” speech leads to the virtuous development of citizens, a notion that Justice Scalia is correct to reject.
The second reason that violence is important concerns the development of entertainment for the community, along with the development of moral guidance. Scalia’s reliance on U.S. v. Stevens means that it is up to the American people to decide what speech is good or bad, inoffensive or offensive. By placing the locus of control within the individual or family, it allows the smaller units of society to shape their own mode of moral conduct.
In his concurrence, Justice Alito would allow restrictions that limit the sale of violent video games because he feels that this type of violent speech stands outside the socially acceptable limits of violence. Justice Alito does not concern himself with violence in general or even violence in the entertainment industry, but just violence in video games. In particular, he argues against what he finds disgusting: games in which people can spend hours “controlling the actions of a character who guns down scores of innocent victims,” e.g. Grand Theft Auto, or games that reflect an “anti-social behavior”—e.g. games that allow users to reenact Columbine. Continued immersion in a world of violence, especially this “disgusting” violence, will diminish the ability of “impressionable minors” to make the distinction between reality and fiction. Or, said another way, immersion into a simulated world of violence will lead to development of a material life of violence.
Yet, this argument creates a distinction between socially accepted forms of violence and socially unaccepted forms of violence, the definitions of which seem to hinge on levels of participation. Socially accepted forms of violence, such as violence in movies and television, would be fine. Socially unacceptable forms of violence, such as violent video games, are not fine. Citing an amicus brief, Justice Alito notes that in the future, virtual-reality games will allow participants to “actually feel the splatting blood from a blown-off head.” Since participants possess an “unprecedented ability to participate in the events”-- by creating avatars, choosing the direction of the game, or simulating an activity in a game, such as swinging a bat at a baseball or a skull--the level of participation exceeds that of other forms of entertainment. If these development trends continue, then “troubled teens” will be able to “experience in an extraordinary personal and vivid way what it would be like to carry out unspeakable acts of violence.”
Of course, these “troubled teens” could watch as many violent television shows or movies that they desired. They could sign up or try out for the local football team and, in some cases, hockey team and experience “unspeakable acts of violence.” However, for Justice Alito, there may not be a problem with this because those teams are “socially acceptable.”
Instead, Justice Alito targets the “troubled teens” that play video games because the people who like to play disgusting, anti-social video games seem like the type of people who only interact with their console and their game in a basement away from other productive and social members of a community. Violence in hockey (and note, I do like hockey though I dislike the fighting), would be fine; violence in video games needs to be subject to regulation.
To counter this position, Justice Scalia collapses the distinction between “high art” and “low art.” He notes that “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.” After reading this, it seems that Scalia would certainly not waste his time playing Mortal Kombat but that does not mean that other people cannot waste their time enjoying it. According to Scalia, the First Amendment allows individuals to waste their time just as it allows individuals to cultivate their minds. The difference between wasting and cultivating your life, between enjoying crass discourse or developing a sense of taste, is a decision best made by the individual or the family and not the community.
This interpretation of the First Amendment provides some individuals with the opportunity to rise above “bad” or “violent” speech and develop their minds while allowing some individuals to waste their minds by stealing car after car and shooting up Liberty City e.g. Grand Theft Auto. Since, as Scalia argues, the potential harm from playing violent video games is nonexistent or negligible at best, the First Amendment caters to all of these moral choices. While some individuals succeed at life because they avoid video games or rarely, if ever, play them, others may waste life by practicing Sub-Zero’s finishing moves for hours on end. Some citizens may even succeed at life even though they play game after game. The Republic, according to Scalia’s view, will succeed, especially when it realizes that the attempt to regulate the violence in the medium of video games is no different than the failed attempts to regulate violence in dime novels, comic books, and motion pictures.
From high school, college, or professional football to the latest installment of Snow White or Die Hard, violence is inherent in our entertainment. Consequently, according to Justice Scalia, Mortal Kombat will not be the end of the Republic. That is, of course, unless the community chooses to censor it.