Supreme Court justice second-guesses decisive vote in gaming free speech case

Further Reading Back in 2011, the Supreme Court handed down a momentous decision enshrining video games as speech with full First Amendment protections, invalidating a number of attempts by states to ban sales and rentals of violent games to unaccompanied minors. But if one Justice had voted with her personal feelings rather than with her understanding of the law, things might have gone very differently.

Speaking at a forum hosted by Princeton University back in November, Supreme Court Justice Elena Kagan called Brown v. Entertainment Merchants Association the toughest case she'd ever been part of. Kagan responded to an audience question by saying that she is "not usually an agonizer," but in deciding this case she was "all over the map... Every day I woke up and I thought I would do a different thing or I was in the wrong place."

The problem, it seems, is that Kagan's personal feelings on the law conflicted with the direction the First Amendment and established legal precedent were pointing her decision. Speaking about the decision, Kagan halted numerous times to reassemble her thoughts, saying, "I have to say, everything in myit should be that you should not be ableif a parent doesn't want her kids to buy violent video games, that should be the parents'it should be that this law was OK, I guess is what I'm saying."

"But I could not figure how to make the First Amendment law work to make it OK," she continued. "It's clearly a content-based distinction [and] that's usually subject to the strictest scrutiny. There was no very good evidence, not of the kind one would normally need, that the viewing or playing of violent video games was harmful [to minors]. And so I just couldn't make it work under the First Amendment doctrine that we have and have had for a long time."

While seven justices ended up voting to overturn the law under discussion in California, Kagan was one of just five justices that voted to essentially pre-empt any future legislative attempts to restrict game sales. She said there was no clearly established state interest that satisfied the necessary "strict scrutiny" as a First Amendment matter.

In a narrower, concurrent opinion, Justices Alito and Roberts agreed that California's law was too vaguely worded to pass legal muster, but they seemed more open to the idea that a better-written law might serve a valid state interest in helping parents limit their children's access to harmful games."I certainly agree with the Court that the government has no 'free-floating power to restrict the ideas to which children may be exposed,'" Justice Alito wrote. "But the California law does not exercise such a power. If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative."

Furthermore, Alito and Roberts seemed to think that there could be some reason to treat games as legally different from other works of speech. "There is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie," Alito wrote. "And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different."

If Kagan had voted based on what she says she felt "should be OK" rather than the state of the law, she could have easily joined with Alito and Roberts (along with Thomas and Breyer, who thought the California law was fine as is) in leaving the door open for future laws restricting game sales to minors. In that world, it's easy to see others states trying to succeed where California had failed, attempting to craft a law that was narrow and specific enough to pass muster for that slim majority of the court.

"I kept on going back and forth and back and forth, and we ended up being sort of 5-4 on that important issue," Kagan said during the Princeton forum. "I was in the five that said that the law should be invalidated. That is the one case where I kind of think I just don't know. I just don't know if that's right."

For all the success gaming has had in establishing its place as an art form and social force in recent years, it's worth remembering just how close the medium came to at least partially losing its most important legal victory in the US courts. Gamers would do well to remember and praise Justice Kagan's apparent decision to vote with her interpretation of free speech law rather than her personal feelings in this landmark case.

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Supreme Court justice second-guesses decisive vote in gaming free speech case