Brown v. EMA decided

The Supreme Court just struck down the California statute challenged in Brown v. EMA, upholding the lower court decision.  The opinion is here.  I think Scalia, writing for the majority, gets the doctrine quite right.  You can’t just add videogame violence as a new carve-out from the realm of protected speech. Scalia also writes at length echoing EMA’s main point: that there is a history of legislative reaction against new forms of media and videogames are just the latest target.  Some other nice bits in there as well, e.g. a list of some of the violent horrors from children’s literature.

I found Justice Alito’s concurrence more interesting, though.  Justice Alito (joined by C.J. Roberts) disagrees with Scalia not so much based on the rationale for the ruling (there is some of that), but based on his conviction that videogames are a truly unique genre with different properties and therefore deserving of different regulatory policies. I was sort of entertained and dismayed by what Alito’s was reading to come to that conclusion: Popular Mechanics? Engadget? People? GameTrailers.com? Hmm.  Evidently, ludology is still not part of the popular consciousness.

Justice Thomas has a pretty remarkable (for the lack of a better word) dissent based upon the law, culture, and political philosophy surrounding the parent-child relationship during our agrarian society of two centuries ago.  (IIRC, the founders didn’t say much about violent videogames.)

And Breyer dissents based on the social science data demonstrating connections between videogames and violence — including studies which are rather harshly denounced by Scalia.  It’s sort of interesting that Breyer is the only one paying much attention to the science on point.  Beyond that, I may be wrong, but I get the feeling that Justice Breyer, unlike Justice Kagan, isn’t too familiar with Mortal Kombat.

On a procedural note, I’m now considerably less confused about the Supreme Court’s motives for granting cert when the lower court’s ruling seemed obviously correct and deserving of affirmance.  I’m guessing that Thomas and Breyer thought differently and Roberts and Alito at least wanted to consider the arguments.  Scalia probably voted to take it too, though I’m guessing he saw it as pretty analogous to Ashcroft v. Free Speech Coalition (and Stevens) from the get-go.

3 thoughts on “Brown v. EMA decided

  1. I think you’ve unfairly characterized Alito’s opinion. His primary disagreement with the majority seems to stem from a sense of caution about rushing to judge new technologies and not a stubborn dismissal of them as implied by your “Luddite” comment. One may accuse him of exhibiting too much caution but his central position seems quite reasonable. His position seems to make even more sense when applied to the particular technology at issue in this decision. Why should we assume that this medium, one which is more dynamic, immersive, and responsive than nearly anything that has come before it, is fundamentally the same and has the same effects?

    It seems particularly low to attack his opinion for citing popular media to present examples of video games; upon what sources would you like him to draw, especially when citing the opinions and views of game developers? If he were citing those media for their scientific merit then your objection would certainly be valid. But unless I’ve missed it, that isn’t what he has done.

    Off-topic: How much of these opinions, particularly Alito’s, was written by the judges and how much was written by their clerks? I only ask because it amuses me to think of some young, hip clerks salivating over the chance to write an opinion about video games: Finally, an opportunity to put all of that hard-earned gaming experience and knowledge to use!

  2. Greg:

    I have to agree with you re Justice Thomas’ reasoning. It almost didn’t read like a serious opinion to me. I was wondering if he was under the influence of something whilst opining.

  3. Hi Kevin,

    No, I wasn’t implying he was a Luddite and I actually agree with him!

    Videogames *are* very different than past media and they raise very different media policy questions. I’m disappointed that his clerks were directing him to Popular Mechanics, though, and not to folks like Jesper Juul, Alex Galloway, Eric Hayot, Bonnie Nardi, David Myers, Espen Aarseth, TL Taylor, Ian Bogost, Aphra Kerr, Ted Castronova — I could go on. There are plenty of academic commentators who have written about the difference between video games and texts. Law prof Kevin Saunders, and others, have written law review articles on point. But instead we get popular mechanics. That’s what I found disappointing — Alito hit on a good idea, but apparently he didn’t know where to go with it.

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