Supreme Court's Brown v. EMA opinions: A digest

Between the majority, concurring and dissenting opinions published in today's Supreme Court decision on Brown v. EMA, there's a good 92 pages of legalese for enthusiastic gaming activists to pore over. If you don't feel like flipping through a novella of legal documents in search of relevant, easily digestible bits, feel free to check out some highlights from each opinion, which we've compiled after the jump!

Majority Opinion

Before addressing the arguments of either party, the Court's majority opinion provides one of the most important assertions to come from the case. "California correctly acknowledges that video games qualify for First Amendment protection," the opinion reads. "The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try."

"Like the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

The majority opinion finds fault in California's argument that violent games deserve exemption from First Amendment protections due to their appeal to minors. "California does not argue that it is empowered to prohibit selling offensively violent works to adults," the opinion states. "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."

The court backs up this argument with a point argued by Justice Scalia during November's oral arguments: That some literature intended for young audiences are just as violent as the games which AB-1179 targets:

"California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read - or read to them when they are younger - contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.' Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven."

The majority also rebuffs the concept that games are inherently more harmful due to their interactivity, to which it responds, "Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to."

The opinion also summarily decries the scientific evidence provided by the representatives of California:

"The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."

Finally, the opinion states that the law wouldn't actually protect the state's young people, stating, "The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it's OK." It later adds, "there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child's or putative parent's, aunt's, or uncle's say-so suffices. That is not how one addresses a serious social problem."

Concurring Opinion

The concurring opinion -- a document which agrees with the decision of the majority, but for varying reasons -- was penned by Justice Alito (and further supported by Chief Justice Roberts), who seemed troubled by the violence present in some of gaming's goriest titles. Still, his position is clear early in the opinion: "Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the Court that this particular law cannot be sustained."

Though the majority is fairly gung-ho about applying older cases' precedent to current cases, Alito says that kind of broad thinking is foolhardy:

"In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution."

The concurring opinion also calls to question the majority's decision that, "spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature."

"The Court is sure of this," Alito writes, "I am not."

Alito agrees that the government does not possess "free-floating power to restrict the ideas to which children may be exposed," but suggests "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. Instead, the California law reinforces parental decisionmaking in exactly the same way as the New York statute upheld in Ginsberg."

Though the majority sang the praises of the Entertainment Software Ratings Board, the concurring opinion was not quite as bullish:

"The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired-or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished."

Alito also reiterates his concern that violent, immersive games might be more harmful than the majority is willing to admit. He adds that while all forms of media are interactive by virtue of their effect on our imagination, that "only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game."

The concurring decision, though technically sided with the majority, seems to be more of a declaration of failure on part of California state representatives to ensure the bill passes strict scrutiny. In closing, Alito states:

"When all of the characteristics of video games are taken into account, 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. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand."

Dissenting Opinions

The dissenting opinions of the Supreme Court come in two distinct flavors; the first is an opinion written by Justice Thomas, which is based around the argument that First Amendment rights aren't extended to speech aimed at children. "The Court's decision today does not comport with the original public understanding of the First Amendment," his opinion reads.

"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,'" Thomas explains. "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."

Thomas expounds on his assertion that the founders didn't intend for children to have free access to speech, stating:

"The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood "the freedom of speech" to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents."

The second dissenting opinion comes from Justice Breyer, whose argument was a little broader than Thomas'. Citing decisions issued in Prince v. Massachusetts and Ginsberg v. New York, he argues that, "This Court has held that the "power of the state to control the conduct of children reaches beyond the scope of its authority over adults." And that the "regulatio[n] of communication addressed to [children] need not conform to the requirements of the [F]irst [A]mendment in the same way as those applicable to adults."

Breyer argues that the California law isn't vague in its description of violence, stating, "Why are the words 'kill,' 'maim,' and 'dismember' any more difficult to understand than the word 'nudity?'"

The dissenting opinion also argues that AB-1179 "imposes no more than a modest restric­tion on expression." It reads, "The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help."

Like Alito, Breyer argues that the majority opinion is too dismissive of the potential harm games can cause minors. He says, "There are many scientific studies that support Califor­nia's views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period."

Breyer references a number of other neurological studies, and argues:

"Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have pro­duced studies of their own in which they reach different conclusions. I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm."

Breyer also worries that the majority opinion "reduces the industry's incentive to police itself" using the ESRB. He also decries the defense that parental controls are effective at preventing minors from playing violent games, stating, "it takes only a quick search of the Internet to find guides explaining how to circum­vent any such technological controls. YouTube viewers, for example, have watched one of those guides (called "How to bypass parental controls on the Xbox 360") more than 47,000 times."

The dissenting opinion concludes with an even greater worry Breyer harbors: That today's ruling conflicts with an earlier First Amendment precedent:

"I add that the majority's different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most vio­lent interactive video games. 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 restricting sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed -- is also topless?"

If you're in the mood to read even more of our nation's highest Judiciary executors have to say about this topic, you can read their complete opinions below.

Brown vs. EMA decision