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.