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US Supreme Court: Video Games Qualify For First Amendment

CmdrTaco posted more than 3 years ago | from the somebody-thought-of-the-children dept.

The Courts 458

Wrath0fb0b writes "The United States Supreme Court threw out a California law prohibiting the sale of violent video games to minors. Notable in the opinion is a historical review of the condemnation of "unworthy" material that would tend to corrupt children, starting with penny-novels and up through comic books and music lyrics. The opinion is also notable for the odd lineup of Justices that defies normal ideological lines, with one conservative and one liberal jurist dissenting on entirely different grounds. In the process, they continue the broad rule that the First Amendment does not vary with the technological means used: 'Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And the basic principles of freedom of speech... do not vary with a new and different communication medium.'"

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The fall of the free empire (0, Troll)

el_jake (22335) | more than 3 years ago | (#36584758)

We are not free but slaves of puritanism...

Re:The fall of the free empire (1)

amliebsch (724858) | more than 3 years ago | (#36584788)

Whoosh?

Re:The fall of the free empire (2)

blackraven14250 (902843) | more than 3 years ago | (#36584814)

He whooshed so hard, my house almost collapsed.

Re:The fall of the free empire (1)

Gideon Wells (1412675) | more than 3 years ago | (#36584852)

Your house survived, but there is going to be a national day of mourning for the lost trailer parks due to this woosh.

Re:The fall of the free empire (1)

d3ac0n (715594) | more than 3 years ago | (#36584828)

Heh, looks like he didn't even read the summary, let alone RTFA.

But he got First Post, so, um, Yay for him I guess?

Re:The fall of the free empire (5, Insightful)

gstoddart (321705) | more than 3 years ago | (#36584864)

We are not free but slaves of puritanism...

Very true ... in my lifetime, the most notable example of this was when Tipper Gore was trying to get a bunch of music banned. This, of course, led to Dee Schneider in the most ball-hugging jeans you could imagine testifying about why what she was proposing was just plain wrong.

Everyone wraps themselves in the flag, and talks about freedom, but often they only mean for people who they agree with. You can't have free speech if you don't support the right of people to say offensive things just because you'd rather not hear it (or because you think it's causing out moral decay).

It's amazing how vocal people can be about making sure that the rights of other people are limited so as not to offend their own sensibilities.

Re:The fall of the free empire (0)

Anonymous Coward | more than 3 years ago | (#36585134)

It's amazing how vocal people can be about making sure that the rights of other people are limited so as not to offend their own sensibilities.

mod parent up. A truly excellent line.

Re:The fall of the free empire (1)

hamburgler007 (1420537) | more than 3 years ago | (#36585440)

The best part was how Dee so eloquently eviscerated her proposal.

Re:The fall of the free empire (1, Funny)

nschubach (922175) | more than 3 years ago | (#36585578)

Daniel "Dee" Snider would not be referred to as "her."

Re:The fall of the free empire (1, Funny)

nschubach (922175) | more than 3 years ago | (#36585592)

Sorry. Reading comprehension fail on my part.

Re:The fall of the free empire (1)

tighr (793277) | more than 3 years ago | (#36585618)

But would Tipper Gore?

Re:The fall of the free empire (1, Informative)

Flyerman (1728812) | more than 3 years ago | (#36585624)

You are correct, Tipper Gore is being referred to as "her"

Re:The fall of the free empire (0)

SirGarlon (845873) | more than 3 years ago | (#36585714)

Daniel "Dee" Snider would not be referred to as "her."

But Tipper Gore would. I think the key to understanding the sentence is knowing what "eviscerate" means.

Re:The fall of the free empire (1)

Knuckles (8964) | more than 3 years ago | (#36585782)

Oh [mamapop.com]

Re:The fall of the free empire (1)

rwiggers (1206310) | more than 3 years ago | (#36585640)

It's amazing how vocal people can be about making sure that the rights of other people are limited so as not to offend their own sensibilities.

Very true... Suppose there's a hungry vampire just in front of you, about to die if not by your blood. Which right to live is bigger? (from a book I read a long time ago). Let's get a not so hypothetical and fantastic case, let's say you're in front of a severe renal patient and known to be a compatible donor. You don't want to live with a single kidney, which right is more important, his right to live or your right not to have your organs harvested?
You're always limiting the rights of other people, including their right to live, by asserting your rights. The problem is where to draw the line.

Re:The fall of the free empire (2, Interesting)

Skarecrow77 (1714214) | more than 3 years ago | (#36585774)

The answer to that is easy, if unpopular:
Your "right to live" exists solely by your ability to defend it.

You have the same "right to live" as anybody or anything else, which is none.

We live in a civilized society, where we have negotiated out most of the anarchist might-makes-right tendencies of our forefathers, but you walk down the wrong dark alley on the wrong night and those negotiations mean jack squat.

so, to answer your two riddles, the vampire and the renal patient have absolutely no right at all to your blood/organs, nor do they have a "right" to continue living either, but they certainly might make the attempt to continue living at your expense, hopefully (well, from your PoV anyway) you can stop them.

Re:The fall of the free empire (2)

geoffrobinson (109879) | more than 3 years ago | (#36585454)

If you are going to condemn any society with even modest morals legislation (excluding major things like murder) as tantamount to slavery, there has never been a free people ever.

Re:The fall of the free empire (1)

ackthpt (218170) | more than 3 years ago | (#36585566)

We are not free but slaves of puritanism...

This is a major victory for News Delivered Through Video Games, no matter how bad the news is!

First Post (-1)

Anonymous Coward | more than 3 years ago | (#36584760)

Send me Bitcoins as reward for First Post!!

1jWDbcp7b2vAG1fvfCQ2rN2b5hjJpXruR

Re:First Post (0)

Anonymous Coward | more than 3 years ago | (#36584950)

What is the current BTC to /.FP conversion rate?

Re:First Post (0)

Anonymous Coward | more than 3 years ago | (#36585008)

More importantly, how many Bitcoins to a LIbrary of Congress?

As an American Conservative... (2)

d3ac0n (715594) | more than 3 years ago | (#36584784)

Let me just say; Hear hear! Well done Supreme Court.

Our rights (ALL of them) are not to be given away to petty tyrants for any reason, even "For the Children".

Re:As an American Conservative... (2)

Kenja (541830) | more than 3 years ago | (#36584848)

The counter argument is that children dont have the same rights as adults. That being said, I have no issue with parents being required to make decisions as to which games they allow their kids to play, provided that information is out there for them to make an informed decision.

Re:As an American Conservative... (-1)

Anonymous Coward | more than 3 years ago | (#36584916)

I have no issue with parents being required

I stopped reading at required... the government has better things to do than enforce requirements about video games. If you aren't going to enforce it, then what's the point?

Re:As an American Conservative... (1)

Kenja (541830) | more than 3 years ago | (#36584936)

Guess you should have finished reading then. Ah well, ignorance is bliss, right?

Re:As an American Conservative... (4, Insightful)

JSBiff (87824) | more than 3 years ago | (#36584988)

You totally missed the point since you stopped reading. The GP isn't saying the government is requiring something of the parents, but simply that because the government is NOT requiring retailers to police what games children buy/play, by default, the parents are required (not by law, but by the LACK of law, and by their own set of standards) to take responsibility for what they do and don't want their children playing.

That is to say, the parents are required by their own conscience to BE good parents, or not.

Re:As an American Conservative... (2)

JSBiff (87824) | more than 3 years ago | (#36584932)

This case isn't about the rights of children. It's about the rights of the stores, the publishers, and the developers.

Honestly, however, most stores will probably *voluntarily* continue to not sell Rated-M videogames to minors, because they will not want to P.O. the parents and the large (but perhaps minority) portion of the population that thinks it's not right to sell such material to minors. This ruling doesn't mean stores are forced to sell them to minors, just that they have the *freedom* to choose to sell them, or not.

In particular, it's sometimes hard to determine whether or not you *are* selling to a minor - consider an online retailer: it would be pretty easy for a minor to order something with their parent's credit card, name, address, so they wouldn't know they were selling to a minor.

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585108)

"The counter argument is that children dont have the same rights as adults."

And the counter counter argument to that is that children are suppose to be raised by their parents, not by the government. A good parent will forbid their kids to play/listen/watch something inappropriate for them until they feel they are mature enough to handle it - and hand out their own punishments (Which need not be physical.) for breaking their own house rules.

Re:As an American Conservative... (1)

mcgrew (92797) | more than 3 years ago | (#36585222)

This isn't an issue with the children's rights, its about the publishers' rights to free speech. However, I can see making them label the games so the kids' parents can decide. Parenting is for parents, not governments. I let my daughters play Quake when they were 12 (in fact we had lots of fun fragging each other on the home network) but it was MY decision. They were my kids, and I raised them like I wanted to (both are still gamers, the youngest is now assistant manager of a GameStop store making damned good money for someone her age).

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585418)

There is a game label system already in place.

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585728)

Gee, wouldn't it be nice if there were some kind of labeling system in place to advise parents about the content of the video games offered to the children. Perhaps something that could quickly convey an appropriate age range, dividing games up into games for teens, adults and other mature people, and games for everyone (maybe they could add another category for everyone over 10 (we wouldn't want to scare the 5 year old)). The best result would be if that system were market driven (no need to involve the government in the industry), low on regulation, and let the industry police itself.

--AC

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585628)

The counter argument is that children dont have the same rights as adults

If you are talking about Rights, with a capital 'R', (like freedom of speech, religion, assembly, etc) children do have the same rights. Neither Congress, nor the states' legislatures, have the authority to abridge these rights. Yes, their parents can send kids to bed without a cookie, and the state can refuse to issue a driving license to minors, but those aren't Rights.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Re:As an American Conservative... (4, Insightful)

ArcherB (796902) | more than 3 years ago | (#36584906)

Let me just say; Hear hear! Well done Supreme Court.

Our rights (ALL of them) are not to be given away to petty tyrants for any reason, even "For the Children".

As a fellow conservative, I must disagree. I see no problem with a state limiting what a minor may buy. Just a state may place limits on buying alcohol, pornography and cigarettes, I see no reason why a state may not place age restrictions on video games.

Note: No is saying that minors are not allowed to play these games, only to PURCHASE them. As a parent, I not only appreciate the idea that I would have to be the one to purchase the material, but I also like the idea that other parents would have to purchase the material for their kids. It's a parent's responsibility to keep up with what their kids are doing. This law would have helped a parent do that. As for the parents too lazy to get off their ass to buy the games? These are the same parents that won't monitor what their kids are doing and are EXACTLY the parents of the kids I don't want owning violent/pornographic video games.

With all that said, I would more than likely buy such games for my kids and even play them with them, but I like the idea of ME being in control.

Re:As an American Conservative... (3, Insightful)

jdastrup (1075795) | more than 3 years ago | (#36584984)

While I agree with most of what you said, you also understand that if your child buys a violent video game without your permission, even if the state/country/store/vendor allows it, then you're not in control of your child, are you?

Another example, cigarettes. So what if a store can't sell them to your child. He/she can still get them somewhere else, have someone else buy them, etc. I don't really care if a store can sell my son cigarettes or not. I raise my children not to smoke, regardless of the source of the cigarette. If he/she smokes anyway, it's not the store/friend/anyone else fault, except his/her and my lake of parenting skills.

Re:As an American Conservative... (0)

jdastrup (1075795) | more than 3 years ago | (#36585000)

..and lake of speling skilz.

Re:As an American Conservative... (2)

Mongoose Disciple (722373) | more than 3 years ago | (#36585262)

Eh.

You can't make it impossible for anyone to get anything, but that doesn't mean that making it harder for someone to get something serves no purpose.

Re:As an American Conservative... (0)

h4rr4r (612664) | more than 3 years ago | (#36585006)

I suggest instead all video games be sold only to those 18 or older. That way we don't need yet another regulatory body deciding what games can be sold to minors.

Re:As an American Conservative... (1)

Anonymous Coward | more than 3 years ago | (#36585016)

I see no problem with a state limiting what a minor may buy

You need to demonstrate harm before you can do that. What problem are you (or the state) trying to solve?

Re:As an American Conservative... (4, Insightful)

zzsmirkzz (974536) | more than 3 years ago | (#36585026)

I see no reason why a state may not place age restrictions on video games.

Because that is the state putting a restriction on speech which they are specifically denied the power to do. This is what the Supreme Court determined and is true. Just because you "do not see the reason", doesn't make it false. Read the Constitution and learn & accept the limitations on the power of The State that were included - they were put there for a reason, from lessons learned from the experiences of the people at the time. When it comes to abuse of power from the State/Government they knew a lot more than we do, they lived through it - their experience/wisdom should be learned from and respected.

Re:As an American Conservative... (2)

Martin Blank (154261) | more than 3 years ago | (#36585648)

The state can and does put limits on speech where harm is likely or actual. The Supreme Court has ruled that they must be reasonable restrictions. I haven't yet read the decision itself in its entirety, but the excerpts that I have seen from skimming through it have suggested that one of the major issues is that no significant harm to children has been demonstrated. Children cannot purchase pornography, for example. Libel and slander laws are generally constitutional. The Supreme Court has also found that the state can place certain limits on tobacco advertising such as requiring that in-store ads be no lower than five feet from the floor.

I'm glad to see this ruling come out. I'll read it in more detail later, but there are a few quotes from the majority opinion that make the point strongly.

The California Act...does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (Citations omitted)

Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), or even when they “vie[w] a picture of a gun.”

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification,which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. 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. (Citations omitted)

[T]he Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires.

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585070)

If you feel that the government has any business deciding who can buy what games, you're not actually a conservative at all.

Re:As an American Conservative... (1)

fuzzyfuzzyfungus (1223518) | more than 3 years ago | (#36585226)

If you feel that the government has any business deciding who can buy what games, you're not actually a conservative at all.

Historically speaking, conservatism's libertarian wing is something of an anomaly, and exists largely in reaction to the rise of the concept of welfare states. It's those scurrilous 'liberals' with their 'innovation' who want to destroy the moral foundations of society by decriminalizing blasphemy, lesse majesty, and other such crimes against the morality of the people.

Re:As an American Conservative... (2)

Qzukk (229616) | more than 3 years ago | (#36585250)

Just a state may place limits on buying alcohol, pornography and cigarettes

None of which are protected by the first amendment, BTW.

Re:As an American Conservative... (4, Interesting)

h4rr4r (612664) | more than 3 years ago | (#36585334)

The middle one should be.

Re:As an American Conservative... (1)

Qzukk (229616) | more than 3 years ago | (#36585460)

Obscenity is excluded so that the jobs of the morality police are easier.

Re:As an American Conservative... (0)

Anonymous Coward | more than 3 years ago | (#36585526)

First I laughed; then my mind was blown (figuratively, of course.)

Re:As an American Conservative... (1)

anyGould (1295481) | more than 3 years ago | (#36585300)

Just a state may place limits on buying alcohol, pornography and cigarettes, I see no reason why a state may not place age restrictions on video games.

My first reason would be - because it doesn't seem to stop kids from getting their hands on it anyway. And oddly enough, the most common place for kids to sneak out booze/porn/ciggies from is... from their parents. ;)

Re:As an American Conservative... (1)

somersault (912633) | more than 3 years ago | (#36585360)

What if the parents are too lazy to be parents, and so just buy any game their kid wants? I'm not trying to make a moral judgement here, I just think it's silly to equate a good parent with one that will buy stuff.

It's incredibly easy for anyone to get anything these days without buying it. If the parent won't buy it, the kid can torrent it. I can just imagine the lobbying now: Lazy parents encourage piracy! Kill them all (and their kids!).

Re:As an American Conservative... (3, Informative)

ALeavitt (636946) | more than 3 years ago | (#36585386)

How can you call yourself a conservative while at the same time supporting expansion of government power over the lives and speech of citizens? I think it might be time for you to look up what defines a real conservative.

Re:As an American Conservative... (3, Interesting)

nschubach (922175) | more than 3 years ago | (#36585726)

There are some "conservatives" (I'll call them the Glenn Beck inspired conservative) that feel that the intent of this country was as a "Word of the Bible" following Christian country with all morals and values enforced.

Ironically, it would make The Constitution the most hypocritical document ever written... but that's not part of their thought process.

Re:As an American Conservative... (1)

gumbi west (610122) | more than 3 years ago | (#36585490)

Then you might want to become a liberal. Thomas (arch-conservative) and Breyer (moderate liberal) voted against the majority but Alito (conserative) and Roberts (conservative) indicated that their support for the decision was soft and that they thought it was too sweeping according to the WaPo story on it. That makes the next challenge, essentially, start from a 5-4 decision... ripe for change and "clarification."

Re:As an American Conservative... (2)

mjackson14609 (69635) | more than 3 years ago | (#36585680)

Note that the "reasoning" of Thomas was that the original view of the First Amendment at the time the Bill of Rights was enacted "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

wow (2)

codepigeon (1202896) | more than 3 years ago | (#36584820)

Didn't see that coming.

Responsibility Where It Belongs (4, Insightful)

jarich (733129) | more than 3 years ago | (#36584862)

The court said that parents should filter what their children see and do. Score one against the nanny state monitoring us for our own good.

Re:Responsibility Where It Belongs (1)

ArcherB (796902) | more than 3 years ago | (#36584960)

The court said that parents should filter what their children see and do. Score one against the nanny state monitoring us for our own good.

If a parent won't get off their ass to buy the games for their kids, this parent won't monitor what their kids see and do.

Re:Responsibility Where It Belongs (2)

hedwards (940851) | more than 3 years ago | (#36585084)

Right, and the alternative is telling all parents what they can and can't allow their children to buy. Don't delude yourself, banning children from buying these materials isn't likely to result in any shortage of such materials getting into the hands of children. Which presumably this is all about.

Free Speech Applies to Speech (1)

tmosley (996283) | more than 3 years ago | (#36584892)

Nice to know that the Supreme Court recognizes speech as speech.

The people who failed that test should be disbarred. Maybe exiled.

Re:Free Speech Applies to Speech (2)

idontgno (624372) | more than 3 years ago | (#36585472)

The people who failed that test should be... Kicked from the #law_of_the_land chat channel as an obvious bot. Think of it as a human rights Turing Test.

Interesting 7-2 division (4, Informative)

CokeBear (16811) | more than 3 years ago | (#36584904)

Only Thomas and Breyer dissented; one of the most conservative, and one of the most liberal.

Re:Interesting 7-2 division (1)

geoffrobinson (109879) | more than 3 years ago | (#36585104)

I thought that was weird too. Reading the dissents is often an interesting thing to do. Especially when it doesn't breakdown according to normal voting groupings.

Re:Interesting 7-2 division (2)

Cheeko (165493) | more than 3 years ago | (#36585216)

And to the points made in the dissent in this case, at least they were well thought out and reasonable. I think the court made the right call, but I did find it interesting in Thomas' argument about how even in speech matters the parent is still the intermediary, I can say what I want, but the parent has control over what their children can here. I don't find this totally unreasonable of a concept.

My issue with the law was that government would have to make a determination of what content meets a violent standard and that is definitely against the free speech framework. Its also a slipper slope in terms of ever changing social standards.

I think in this case the 2 dissenting votes had more to do with interpretation of the role of the parent in the law as it was structured, versus the role of government in the law.

Re:Interesting 7-2 division (1)

Nikkos (544004) | more than 3 years ago | (#36585466)

"And to the points made in the dissent in this case, at least they were well thought out and reasonable."

They wern't reasonable in my opinion. One justice compared violent videogames with child porn, and the other missed the point of the arguments entirely.

Re:Interesting 7-2 division (5, Insightful)

surgen (1145449) | more than 3 years ago | (#36585746)

Thomas' argument about how even in speech matters the parent is still the intermediary, I can say what I want, but the parent has control over what their children can here.

This was an interesting argument, but it kind of fell apart when I thought about the situation at hand.

Essentially: How can a child be at a game store, in position to buy a game, without the parent having relinquished (or be ineffective at) their roll as the intermediary?

If the parents want a store to drop their child off at confident that they will not be sold a violent game, it is a failing of the market to create such a store. Such stores could exist side by side with stores that do sell violent games to children (the situation we currently have). It is not the place of government to create that type of store at the cost of every store that would not follow the model.

Furthermore, legislation against the child buying that M-rated game isn't going to do anything to stop all the other forms of speech the child will potentially be subject to while in the store without supervision or on the way to/from the store.

As Scaila says in his opinion, such legislation does not enforce parental authority, but instead imposes government authority.

Re:Interesting 7-2 division (1, Troll)

hedwards (940851) | more than 3 years ago | (#36585142)

Thomas isn't conservative, he's bought and paid for. If you don't believe me, just google Justice Clarence Thomas conflict of interest. He regularly behaves in a way which judges sitting on lower courts would get kicked off the bench for.

The fact that Scalia seems to think his views are extreme should be a pretty good indication of Thomas' fitness to sit be an associate justice.

This is crap reasoning (2)

geoffrobinson (109879) | more than 3 years ago | (#36585784)

I'm sorry. I see this all the time on Slashdot.

Just because they have a legal reasoning disagreement doesn't mean someone is bought and paid for.

Hey, Ginsburg supports abortion rights. She must be bought and paid for by the abortion lobby. Or she may just support that there is a legal right to have an abortion.

Re:Interesting 7-2 division (0)

Anonymous Coward | more than 3 years ago | (#36585510)

The most interesting part of this was that Clarence Thomas offered his own opinion. THAT is rare.

Re:Interesting 7-2 division (5, Interesting)

BlaKnail (545030) | more than 3 years ago | (#36585558)

Breyer's dissent has a bit of nice reasoning in it, actually.

"But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless? This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face. "

Basically, the court had previously ruled that it's ok to ban porn sales to children, and the court is generally bound to prior rulings unless overturned by new legislation. The logic used to ban pornography sales to kids still applies to this case. Not saying it's a good law, but Breyer's position makes a lot of sense.

Re:Interesting 7-2 division (1)

bugs2squash (1132591) | more than 3 years ago | (#36585672)

It's always interesting to learn more about what "liberal" and "conservative" mean. In this case the line seems to be drawn based on whether sex or violence is the greater evil.

Re: video games must all be outlawed. (-1)

Anonymous Coward | more than 3 years ago | (#36584970)

Hello,
I hate to break it to you, but video games must and will be completely outlawed, and adults caught playing them must and will be prosocuted as child rapists and pedophiles.

Strict government monitoring of all activity would be able to accomplish this.

How... Ironic. (4, Insightful)

fuzzyfuzzyfungus (1223518) | more than 3 years ago | (#36584974)

" JUSTICE THOMAS, dissenting.

The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far.

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings."

Justice Thomas should, perhaps, stop to consider that the "practices and beliefs of the founding generation" establish a number of other interesting boundaries to the distribution of various freedoms...

Re:How... Ironic. (2)

erroneus (253617) | more than 3 years ago | (#36585148)

I think judges don't know what speech is any more. Recently we saw that confidential data having to do with what drugs are being prescribed to be used in marketing is speech. Now, adult materials in the form of a game is speech.

My first reaction, like so many others was "okay, then kids can buy porn now too right?" I think judges are flipping coins in their chambers and announcing rulings or something like that.

Re:How... Ironic. (1)

dcollins (135727) | more than 3 years ago | (#36585172)

To play devil's advocate, a consistent response might be -- Some of those other practices and beliefs were overturned via the amendment process, which isn't the case here.

Re:How... Ironic. (0)

Anonymous Coward | more than 3 years ago | (#36585678)

Exactly. While I disagree with the interpretation, I do not disagree with the reasoning for coming to it.

It's not the place of the Supreme Court to rule that the Constitution itself is unconstitutional. Therefore, if you believe the Constitution states one thing, then you cannot simply ignore that because of modern ideals without changing it and the Court (Supreme or otherwise) does not have that power.

Also, I'm fairly certain that the GP was getting at slavery as the ironic piece.

Re:How... Ironic. (1)

retroworks (652802) | more than 3 years ago | (#36585194)

The irony is interesting, on more than one level. But his central point, which is that "freedom of speech" allows restriction of speech to children, is a sound one. As online games replace video games, this ruling could have had profound precedent on censorship of the internet insofar as children have access to "redtube" and "youporn". I don't know whether the result would have been good or bad, but it looks like the Supreme Court is kicking the can down the road a bit farther, whereas Thomas would have allowed government to distinguish between content directed at children.

Re:How... Ironic. (1)

geoffrobinson (109879) | more than 3 years ago | (#36585284)

Breyer dissented as well. Why did you leave that out of your analysis?

All rights get limited at some point. I'm not agreeing with Thomas, but you need to be fair.

This doesn't make any sense. (2, Insightful)

Anonymous Coward | more than 3 years ago | (#36585004)

Kids can't buy porn.
Kids can't see R-rated movies.
Kids shouldn't be able to buy violent video games.

As a life long gamer I see absolutely no problem with restricting sales of games with violence or sex to adults only.
What's the point of challenging that? Do we want 8-year olds to save their lunch money and play Grand Theft Auto?

Re:This doesn't make any sense. (4, Insightful)

Anonymous Coward | more than 3 years ago | (#36585210)

You, like many people who don't live in the US or don't understand how the laws work, are missing the point, which is that the *government* does not regulate any of those things. The US movie industry is self-regulating, that is, production houses submit their movies to the MPAA, which gives the film a rating. The producers don't *have* to do this, but if they don't, their movie likely won't be shown in any US theaters, who generally require every film to carry an MPAA rating.
Again, the government has nothing to do with this. Additionally, the government cannot punish theaters for allowing kids in to R-rated movies, as that would be unconstitutional restriction of free speech. It's entirely up to the theater itself, a private company who has the right to deny access to anyone they want.

Currently, the video game industry works the same way: ESRB ratings are voluntary, not required by law, but publishers submit their games for ratings because they want their games in stores. It's up the stores, private companies, to decide whether to enforce these ratings.

Re:This doesn't make any sense. (0)

Anonymous Coward | more than 3 years ago | (#36585214)

What's the point of challenging that? Do we want 8-year olds to save their lunch money and play Grand Theft Auto?

Absolutely correct! The government really needs to step in here and properly parent children. I can't tell you how many times I've seen parents teach their children lies and non-sense - and then the children grow up to be dysfunctional adults. Children are our future and we need the government to step in and teach them the proper values because obviously parents are just incapable of monitoring their children.

Re:This doesn't make any sense. (0)

Anonymous Coward | more than 3 years ago | (#36585268)

The point is that it is up to voluntary standards bodies to promote enforcement of these guidelines.

There is no LAW prohibiting kids from seeing rated R movies, nor should there be.

Re:This doesn't make any sense. (1)

potat0man (724766) | more than 3 years ago | (#36585320)

Kids can see R-rated movies under the law. It's theaters that won't allow them in by policy.

Do we want 8-year olds to save their lunch money and play Grand Theft Auto?

I don't. But there are better ways to prevent this from happening. Parenting. And supporting store policies that don't allow sales of violent games to minors. No need to brandish police force or put people in prison over it.

Because you're comparing apples to oranges. (2)

oneiros27 (46144) | more than 3 years ago | (#36585384)

First, there's two different issues here ... porn vs. violence. The courts have long established that porn is considered obscenity, and therefore, does not qualify under the First Amendment. They've never said the same thing about violence, which they're re-affirming here. (Although, I wasn't sure if they were saying that animal cruelty was or wasn't considered obscene)

In the case of kids seeing R-rated movies -- it's not illegal. It's the movie producers an theatres acting as a group to set standards, but it's *not* the law.

Likewise, the video game producers could voluntarily rate their games (and many do), but as people's experience may vary depending on how you play the game, they're notoriously difficult. And the ratings only serve as a recommendation system for the purchaser, unless the retailer makes it their policy to not sell items with stronger categories of markings to children. ...

And oddly enough, for some of my formative years, I lived in Europe ... where they were much more accepting of the naked human body (not porn, just nakedness), but that violence was to be avoided. The A-Team was considered violent, but there was nothing wrong with naked people in toilet paper commercials.

Re:This doesn't make any sense. (1)

somersault (912633) | more than 3 years ago | (#36585572)

What's wrong with 8 year olds playing Grand Theft Auto? Great game. Honestly, anyone that talks about GTA as if it's some horrific soul destroying thing, has never played it. There are many darker games out there. I was playing stuff like Mortal Kombat when I was 9. You could rip your opponents head off, with their spine still dangling and dripping blood. You could rip out their still beating heart. To this day, I've never actually tried to do either of those things for real.

Sudden outbreak of ... uh what?! (1)

erroneus (253617) | more than 3 years ago | (#36585182)

We need a new tag for this...

The Terminator wanted this law. (1)

Animats (122034) | more than 3 years ago | (#36585192)

The strangest thing about this law was that it was supported by Arnold Schwarzenegger .

Re:The Terminator wanted this law. (1)

F.Ultra (1673484) | more than 3 years ago | (#36585444)

Well that is not so strange, you can still make tons of violent movies/games without wanting them to reach children.

Great ruling... (1)

Super Dave Osbourne (688888) | more than 3 years ago | (#36585256)

The issue is that we have a huge responsibility as a society to have some values, they may and often do vary, for life, liberty and the pursuit of happiness. If a family doesn't value life then feed them violent games and let the mayhem begin. But don't expect me to pay for the jailing of those offenders when they act out their fantasy in a violent or criminal manner. Teach someone caring, love, tranquility and happiness and likely you will have just that in their and your lives. Teach them violence and they will often result to this as the way to play out their understanding of resolution to a situation. Society, freedom comes with a price. That price is responsible, reasonable teachings to the children and adults if needed via either education in a free society or in the penal system. The US penal system I can only guess loves this ruling, it means more folks showing up for 'work' at the jails.

Re:Great ruling... (2)

codepigeon (1202896) | more than 3 years ago | (#36585432)

Can you cite your references? There was a recent study that said the complete opposite of what you are claiming. http://www.pbs.org/kcts/videogamerevolution/impact/myths.html [pbs.org]
I believe it was even posted here on /.

Keep the old wives' tales to yourself.

Common Sense (0)

Anonymous Coward | more than 3 years ago | (#36585390)

Violence in society is not attributable only to violent video games. If the do-gooders want to curb immorality and violence, they need to start in their own backyards first. We fill the minds of our youth with violence and immorality from the day they are born with crap from the Television, radio, church, school, & homes. To throw rocks at the video game developers over violent gaming is hogwash.

The nation's government is filled with immorality from top to bottom.
Graft, greed & corruption is standard operation with those scum bags.
We glorify violence with televised war mongering and footage.
All is lost, all is lost ..

Now abolish software patents (1)

sourcerror (1718066) | more than 3 years ago | (#36585406)

Now abolish software patents, because it's mathematics applied to a different medium. (Other than the human mind.)

Score 1 for parents in California... (1)

markw365 (185614) | more than 3 years ago | (#36585412)

As a non-native Californian living in the PRK. I'm still amazed at the rights the state takes away from parents in the name of "It's for the children." Work permit from the school?!? As a parent of 3 teens, I'm the work permit, grades slip, work stops. Done. Just because some parents are slackers, the state tries to impose the "proper" way to raise children with rules and regulations often written by bureaucrats and legislators that have no children. My kids know the rules and know what's allowed, I do not need the STATE telling me how to raise them. This is a great ruling, the legislator here needs to get back to the basics and get off their social agenda. 60 cents a gallon gas tax and you need an offroad vehicle to drive down most major roads here. :)

Why is sex obscene but violence is not? (2)

n1ywb (555767) | more than 3 years ago | (#36585468)

Except that material can and is still deemed "obscene" and banned for children, typically due to sexual content. What sort of country do we live in where gratuitous ultraviolence is OK but procreation is still taboo? All this talk about how important first amendment protections are for violence but heaven help the children if they see somebody's ding dong! Don't get me wrong, I'm opposed to censorship. I just wanted to point out the hypocrisy.

Re:Why is sex obscene but violence is not? (1)

WillAdams (45638) | more than 3 years ago | (#36585786)

It's fake violence, but real sex.

Interesting reasoning (1)

highlander76 (901551) | more than 3 years ago | (#36585520)

I'm not saying I disagree with the decision but I spotted an interesting justification in the pdf. "This country has no tradition of specially restricting chil-dren’s access to depictions of violence."

What about Rated R movies?

Another interesting bit: "...Cali-fornia’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults isnot uncritically applied to children."

So restriction to porn is only OK because it was done before? What about the first ban on porn? Shouldn't that be thrown out and thus the whole history of the ban on porn be thrown out?

Re:Interesting reasoning (0)

Anonymous Coward | more than 3 years ago | (#36585708)

What about Rated R movies?

Private theater policy only. No force of law.

How is porn different? (1)

ubergeek65536 (862868) | more than 3 years ago | (#36585542)

What makes grand theft auto protected and porn not?

Re:How is porn different? (1)

Toze (1668155) | more than 3 years ago | (#36585790)

Everyone will admit to playing video games.

Well, at least that's consistancy. (1)

Kirin Fenrir (1001780) | more than 3 years ago | (#36585666)

Amidst all the bending over backwards to let corporations do whatever they want under the reasoning of Free Speech, it's nice to at least see the Supreme Court being consistent in their application of the First Amendment.

porn as a video game?? (0)

Anonymous Coward | more than 3 years ago | (#36585682)

saw a comment about porn being restricted from minors.

It got me thinking. What if i developed a video game that used real actors, but it was like Leisure Suit Larry. you basically guided the male protagonist through the game and you got extra points by having sex. But, its not animated. its like the dragon lair game where its filmed and you then pick the scene you want to go to.

is that a game, or is it porn. if i sold it as a video game would it be protected speech and a kid could buy it. i see a whole market opening up for EB games. /s
by the way, i'm trademarking/copyrighting/patenting/monetizing this idea by way of this post. if anyone tries to do this please not my lawyers will be contacting you. /s

So... (0)

Anonymous Coward | more than 3 years ago | (#36585762)

The article mentions books as a comparison, so here's mine.
If it's a-ok for a 5 year old to buy an M game, is it then, a-ok for that same 5 year old to go buy porn? Then waltz into a theatre and see an R rated movie? Don't get me wrong, I agree this shouldn't be a law, but I just don't like the comparison.

So.... (1)

krazytekn0 (1069802) | more than 3 years ago | (#36585766)

This would then open the door for kids to be able to go into any movie they want without parental permission... Or buy porn... I don't know if I agree with this one. It's just one case citation away from unknowingly exposing kids to all the other "media" restricted to adults.
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