Supreme Court rules video games qualify for First Amendment protection

The Supreme Court has ruled in favor of video games, saying video games are protected by "the basic principles of freedom of speech."

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As expected, the Supreme Court has come to a decision in a case that would ultimately determine if video games can qualify for First Amendment protection. The answer was overwhelming a "yes," as the court ruled in favor of the games industry 7-2. The full decision summarizes it quite clearly:

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.

The ruling should come as unsurprising, given the Court's opinion during the original case. In November, Justice Ginsberg questioned the legality of California's attempt to restrict the sale of video games to minors: "if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?"

One of the bill's original proponents, then-California governor Arnold Schwarzenegger said that the proposed bill would "ensure that parents are involved in determining which video games are appropriate for their children." Hopefully, supporters of California's effort to ban violent video games will see that today's ruling doesn't stop that effort. Even with violent video games on store shelves, you can always choose not to buy them for your children.

From The Chatty
  • reply
    June 27, 2011 7:45 AM

    Andrew Yoon posted a new article, Supreme Court rules in favor of video games.

    The Supreme Court has ruled in favor of video games, saying video games are protected by "the basic principles of freedom of speech."

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      June 27, 2011 8:03 AM

      i called it, and the reasoning, a year ago.

      http://www.shacknews.com/chatty?id=26039885#itemanchor_26039885

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        June 27, 2011 8:05 AM

        Congrats. Sadly, this was not a foregone conclusion, and more than a few people were a little nervous about this decision.

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          June 27, 2011 10:34 AM

          I don't know a single person, actually in the know on this matter, that had a reasonable concern of any variety. There was really no way that that this could have been upheld, which the 7-2 ruling strongly supports.

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            June 27, 2011 10:42 AM

            MorrisAtCNN was concerned, and he was pretty damn close to this ruling.

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              June 27, 2011 10:53 AM

              Perhaps he followed it closely but does that mean he is "actually in the know"? What is his background with regards to judicial matters? Does he report on court cases a lot? If so has that included a decent amount of SCOTUS cases?

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              June 27, 2011 11:48 AM

              He's not in the know, strictly speaking. I am referencing named authors on some of the amicus briefs. That's my definition of in the know.

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        June 27, 2011 8:06 AM

        So? The problem was never that a rational decision could decide in favour of the restrictions, the problem was that it wasn't guaranteed they would make the rational decision. It's a tremendous relief to see the bill shot down, no matter what.

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          June 27, 2011 7:41 PM

          Actually on 1st amendment issues the Supreme Court is surprisingly consistent, in an awesome way.

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        June 27, 2011 8:54 AM

        that thread is 3 weeks old

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      June 27, 2011 8:20 AM

      active liberty my ass

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      June 27, 2011 8:44 AM

      This is how they voted:

      "SCALIA, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opin-ion concurring in the judgment, in which ROBERTS, C. J., joined. THO-MAS, J., and BREYER, J., filed dissenting opinions."

      Breyer was appointed by Clinton and Thomas by Bush Sr. Scalia and Kennedy were appointed by Reagan. Ginsburg was appointed by Clinton. Roberts and Alito were appointed by Bush Jr. Sotomayor and Kagan were appointed by Obama.

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        June 27, 2011 10:40 AM

        Thomas is pretty much wrong about all things at all times, unless by coincidence his wife has been paid by people backing the correct ruling.

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          June 27, 2011 10:42 AM

          His dissenting opinion in this case is just awfull. Scalia et al give him a good trashing in their opinion.

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      June 27, 2011 10:10 AM

      will be reading the actual opinion! I did a whole unit on laws pertaining to video game violence and the california law in particular. I think the decision isn't surprising but it is is a relief. I think for the most part, video games are still misunderstood by the older generations, but as seen in past cases, the California law didn't hold up to strict scrutiny standards.

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        June 27, 2011 10:44 AM

        The scalia Majority opinion is actually a pretty quick read

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          June 27, 2011 10:54 AM

          Yeah it is pretty darn well written. The rest of it is crap..

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            June 27, 2011 7:09 PM

            dissents are usually wordy as hell, and scalia is one of my favorite opinion writers, though sometimes i don't agree with his positions

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      June 27, 2011 11:10 AM

      What the hell, so does that mean parents have to actually start parenting. I guess when their jacked up kid does something wrong they can't blame it on video games.

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        June 27, 2011 11:14 AM

        that's what is also interesting. folks that are pro-freedom want the government to control this in the same breath. very odd.

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          June 27, 2011 11:43 AM

          They're not pro-freedom. They're pro-Freedom(R). Freedom(R) is a product made by conservatives that serves as a freedom substitute but doesn't actually confer any real freedom.

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        June 27, 2011 11:24 AM

        The two aren't mutually exclusive.

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      June 27, 2011 11:35 AM

      Nice to see this. Also nice to know I was pretty close to predicting this outcome and some of the concurring/against arguments back on an early Weekend Confirmed.

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      June 27, 2011 11:41 AM

      Good. Like I said before, if you want to keep your liberties (and your right to raise your children) vote Republican. It's not a perfect solution, but at least new government regulations won't be accelerated.

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        June 27, 2011 11:45 AM

        hahahaha holy shit

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        June 27, 2011 11:48 AM

        *grabs popcorn*

        this subthread's going somewhere.

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        June 27, 2011 1:46 PM

        lol here we go

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        June 27, 2011 1:52 PM

        Do you know who Clarence Thomas is?

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        June 27, 2011 1:58 PM

        I'm very enthused by this ruling. It shows that not every issue is a matter of party line thought.

        Both Thomas and Breyer supported governmental intrusiveness for different reasons. However, if you look at the rest of the field, you had Scalia agreeing with Ginsburg, limiting state power.

        I actually though Alito was going to go over to the dissent, however, his rationale hinged entirely on the vagueness inherent in the statute, not the principle of limiting violent speech.

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        June 27, 2011 2:18 PM

        Most conservative Justices voted in favor.

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          June 27, 2011 2:19 PM

          Depends how you scale conservative. Economically or socially? I'd say Thomas is the most socially conservative justice on the Court. Long Dong Silver ahoy!

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            June 27, 2011 2:45 PM

            I'm socially concervatve mysefl and honestly I was disappointed in Thomas. What happened to championing individual rights and responsbility?

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              June 27, 2011 3:24 PM

              He's an old cranky dickhead, not sure why you're surprised at his conclusion.

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              June 27, 2011 5:55 PM

              That's more of a socially liberal approach? Social conservatives are more interested in banning "bad" things.

              Social conservatives want to ban "bad" things. Economic liberals want to ban "bad" things. Social conservatives who are economically liberal are authoritarians. Social liberals who are economic conservatives are libertarians.

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                June 27, 2011 6:58 PM

                I think economic liberals want to try to create "good" things moreso than ban "bad" things. (programs funded by taxes, etc)

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                June 27, 2011 8:40 PM

                Not really, I find that certain factions on each side kinda twist the meaning of liberty and responsibility. Some social liberals have a tendency to promote freedom without responsibility. Hence you get things that are PC and new terms like "deferred success".

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        June 27, 2011 2:30 PM

        this was fairly non-partisan actually. the bill was introduced in California by a Democrat but the appeal process was led by Schwarzenegger, a Republican, who appealed to the ninth circuit when it was struck down by the district courts and then to the supreme court when the ninth circuit upheld the district court's rulings. the two supreme court dissenters are also fairly different. Clarence Thomas is easily the most conservative justice and Breyer is among the more liberal.

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          June 27, 2011 2:49 PM

          But that's not going to stop hatemongers on one side using this to blame the other. Just look at a couple of comments here on the Shack. Honestly, as all gamers, I wish we could at least unite on the positive outcome of this ruling.

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      June 27, 2011 11:54 AM

      Love it!

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      June 27, 2011 11:58 AM

      its so big of a win, it even made the front of the steam store

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      June 27, 2011 12:01 PM

      Key question: Is this the end of age gates?

      Pleasesayyespleasesayyes

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        June 27, 2011 12:04 PM

        Age gates aren't enforced by the government, so no.

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          June 27, 2011 12:23 PM

          Well, why use them then?

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            June 27, 2011 12:25 PM

            THE CHILDREN

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            June 27, 2011 12:25 PM

            The ESRB requires it and Walmart won't carry unrated games.

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              June 27, 2011 12:27 PM

              Sounds like there might be a Walmart executive who needs replacing.

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              June 27, 2011 12:29 PM

              Easy solution: drop the ESRB ratings. There were third-party rating systems in the past.

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                June 27, 2011 1:45 PM

                The ESRB is a third-party, aren't they?

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                  June 27, 2011 1:50 PM

                  Well, what I meant is competing ratings. Yes, ESRB is a third-party.

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                    June 27, 2011 2:05 PM

                    Getting another group to rate all of your games and then convincing retails to carry those games doesn't really seem "easy" especially for the purpose of eliminating age gates.

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                      June 27, 2011 2:12 PM

                      I think the ESRB is doing a decent job right now. I'm ok with age gates if it means less rage at the video game industry.

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                June 27, 2011 2:58 PM

                ^ Apple's rating system is probably the best competition right now to the ESRB. Dunno what Android/Amazon Application Stores have in these regards.

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                  June 27, 2011 3:35 PM

                  Apple? Alright, nevermind then. I'll live with age gates.

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                June 27, 2011 4:09 PM

                That's a super bad idea. The Majority opinion very favorably noted the success of the ESRB's system and how video games are harder for kids to purchase than other rated media (purchase, not get from ther parents). It was one reason they failed to see a compelling interest behind the law. Making any big changes to that could easily flip the court's balance on this issue. They seem quite happy with the status quo, the absence of this fairly successful system might incline one of them to think more government intervention is needed.

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        June 27, 2011 2:17 PM

        nope, are there age gates with movies? Shows? and other first amendment protected stuff?

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          June 27, 2011 3:39 PM

          Age gates have absolutely nothing at all to do with the first amendment or governments

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        June 27, 2011 3:44 PM

        age gates are required by the ESRB for compliance. if you don't have them for M-rated (or potential M-rated) game content (which includes all marketing materials related to the game, such as trailers) then you get fined and the ESRB will be annoyed with you and when the ESRB is annoyed they become giant babies that are impossible to reason with

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          June 27, 2011 5:10 PM

          What confuses me is where they get this authority?

          Like, say I run a website and want to host trailers for games with no age gate. How does the ESRB have any right to control that?

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            June 27, 2011 5:31 PM

            they have authority because devs and publishers grant them authority. just like the MPAA it's voluntary. you can make games that aren't rated by the ESRB, but major retailers will not carry them (unless they are shitty puzzle games or something) and first-party console makers will not certify them, which means you are pretty much limited to selling the game online on Steam or something.

            I don't know specifics about third-party news sites like the Shack or Giant Bomb or something, but I assume that is because they are displaying marketing materials. the location doesn't matter. if you're asking what would happen if Giant Bomb suddenly decided to turn off all age gates I would assume that the publishers would get fined and then promptly stop sending material to the site (which would hurt the site) or possibly even ban them from publishing it until they promised to age gate it? the ESRB doesn't have authority over web sites that just publish materials, which is why they generally get away with it. likely pubs/devs just ask the sites to age gate stuff and the sites comply because you don't want to strain that relationship.

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      June 27, 2011 12:50 PM

      I love Thomas' opinion. Full of lols. Reminds me of his opinion in Morse v. Frederick (so focused on parents, he loses grasp of the legal issue). He's so out there.

      Also, WTF Breyer, strict scrutiny is rarely met for a reason, yet you think this is one of those times?!?

      Yay for the polar loons of the Court.

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      June 27, 2011 1:43 PM

      MorrisatCNN did a nice write up of some of the highlights in the ruling here: http://weblogs.variety.com/technotainment/2011/06/highlights-from-the-supreme-court-gaming-decision.html

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        June 27, 2011 7:08 PM

        Not enough budget for an editor?

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      June 27, 2011 4:08 PM

      That sad part is that it wasn't 7-0

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        June 27, 2011 4:29 PM

        there are 9 justices on the court

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          June 27, 2011 4:33 PM

          I think he is saying that they should have shot the dissenters in the fucking face FUCK YEAH VIOLENCE!!!!

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        June 27, 2011 5:20 PM

        It was 7-2 wasn't it? I haven't read the opinion yet to see. IIRC the most shocking thing to me was that Clarence Thomas dissented from a Scalia majority opinion. That almost never happens.

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          June 27, 2011 7:00 PM

          it's more 5 majority, 2 concur, 2 dissent

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          June 27, 2011 7:36 PM

          Read his opinion. It's...I just can't take him seriously...

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            June 27, 2011 7:38 PM

            now, imagine that he's been writing stuff like that for the past 20 years

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            June 27, 2011 8:02 PM

            Read who's opinion? Scalia's or Thomas'?

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              June 27, 2011 8:03 PM

              Thomas

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                June 27, 2011 8:08 PM

                I don't have to in order to know what it reads like. I've read more Thomas opinions than I'd ever care to. Scalia gets out there too at times, but he's at least entertaining. But regarding what I was saying above... there's a common phrase among law scholars (wanky lawyers who read Supreme Court opinions but don't actually do anything useful) that is "As goes Scalia, so goes Thomas". It's been almost bankable for the last 20 years, which is why I'm surprised Scalia wrote the opinion and Thomas wrote the dissent (even moreso than this didn't come out 9-0)

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                  June 27, 2011 8:19 PM

                  On real fundamental liberty stuff, they actually diverge alot. See Hamdi v. Rumsfeld- where Scalia and Stevens team up to slap down Bush and the Majority.

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                    June 27, 2011 8:22 PM

                    Yeah, that's a very famous case, and still a very controversial ruling to this day. I like to think Scalia is a little more freewheeling in his old age, especially since he's basically loathed by everybody around him and he finally got a cold slap when Roberts was appointed Chief Justice out of the gate, completely passing on Scalia's seniority, so he's been a bit wilder since then.

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                  June 27, 2011 8:19 PM

                  Eh, I read it anyway, and it's about what I expected - Thomas is an idiot and he doesn't understand the subject. I'm not even sure if the legal angle he's arguing is good law anymore or not.

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                    June 27, 2011 8:25 PM

                    That sounds about right. Whenever he's all by his lonesome shit goes off the rails. I found it interesting Scalia spent so much time demolishing Alito's concurrence. I disagree with Scalia 95% of the time, but that is not a dude I would want to piss off.

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                      June 27, 2011 8:28 PM

                      Have you ever read a Scalia opinion? Ripping into people is practically his primary purpose, which is why I like him. I don't often agree with him, but I like him.

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                        June 27, 2011 8:36 PM

                        Well played. I should clarify- I'm not surprised he was his dick-ish self (and I've read a lot of his writing and seen him speak once) I'm surprised he flatly ignored the dissents and went after the concurrence. He wasn't attacking the case at bar, he was going after the next video game law, the one that satisfies Alito and Roberts. I was surprised by how strongly he defended violent video games, a medium I can only assume he's never really experienced. Again, I rarely agree with him, but it's kind of reassuring to know someone you disagree with often can be on your side on an issue like this.

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                    June 27, 2011 8:32 PM

                    I just finished Breyer's dissent, and unlike Thomas, he actually makes some very good points and I completely see where he's coming from. I think it'd be wise to take note of his position that SCOTUS may have just created a number of rational inconsistencies (expect to see that exploited in future matters that cite to this, or related, cases) and that we may have possibly missed the broader scope of the purpose of the law.

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        June 27, 2011 7:00 PM

        Seriously, how do you disagree with this?

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      June 27, 2011 5:07 PM

      Leland's response to the verdict is still pretty myopic... pretty funny considering that's pretty much the same complaint he gave about the Justices.