“And whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” —Scalia, Justice

Facts: Video games are played by millions of youth and adults. The dollar sales of video games exceed the receipts of the movie industry. Some of the games contain violent content. The state of California enacted a state statute that prohibits the sale or rental of “violent video games” to minors. The act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” Violation of the act is punishable by a civil fine of up to $1,000. Members of the video game and software industries challenged the enforcement of the act. The U.S. district court concluded that the act violated the First Amendment and permanently enjoined its enforcement. The U.S. court of appeals affirmed the decision. California appealed to the U.S. Supreme Court. 

Issue: Does the California act that restricts violent video games violate the First Amendment? 

Language of the U.S. Supreme Court: Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears. California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Highschool reading lists are full of similar fare. Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why. Even where the protection of children is the object, the constitutional limits on governmental action apply. 

Decision: The U.S. Supreme Court held that the California Act violated the First Amendment to the U.S. Constitution. 

Ethics Questions: Does the majority have the right to legislate what the minority should see and hear? Do video game producers act ethically in producing violent video games?