Fatality! Supreme court performs finishing move on violent game ban

The United States Supreme Court today struck down a California law that bans sales or rentals of "violent video games" to minors, ruling that the state law is a violation of free-speech rights. This is the high court's first ruling in a case involving video games. Reuters, Wired, CNET, and here's the PDF. 7-2, Thomas and Breyer dissented.

Brian Crecente at Kotaku wrote the best analysis we've seen.

(illustration and headline: @beschizza!)

Boing Boing editor/partner and tech culture journalist Xeni Jardin hosts and produces Boing Boing's in-flight TV channel on Virgin America airlines (#10 on the dial), and writes about living with breast cancer. Diagnosed in 2011. @xeni on Twitter. email: xeni@boingboing.net.

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Anonymous

Thomas dissented??? Wow, I thought he was in constant lock-step with Scalia.
hassenpfeffer

I can’t believe:
– that Scalia actually did the right thing
– that Thomas DARED to offer an opinion that dissented from Roberts and Scalito’s
- gravytop
  
  Thomas always votes in lockstep with Alito? Are you boasting about your ignorance, or sheepishly admitting to it?
- d3matt
  
  frankly, it’s a bit refreshing to see the court make a decision where the conservatives and liberals in the court are on both sides as opposed to voting like a block!
  - hassenpfeffer
    
    I’m in total agreement, d3matt, but Thomas has a well-founded reputation for voting in lockstep with his conservative peers and rarely issuing any sort of opinions, let alone minority opinions.
- Avram / Moderator
  
  Oh, hassenpfeffer, Thomas has disagreed with Scalia before. Not often, but it has happened. They only agree 93% of the time.
  - Bevatron Repairman
    
    This last term, Scalia and Thomas agreed in the judgement 73% of the time in nonunanimous cases. Breyer agreed with Kagan, Ginsburg, and Sotomoyor more often than that. The highest agreement in nonunanimous cases was Kagan and Sotomayor at 85%.
    - Antinous / Moderator
      
      The highest agreement in nonunanimous cases was Kagan and Sotomayor at 85%.
      
      Kagan hasn’t been on the Supreme Court for a year, and Sotomayor hasn’t been on it for two years. It’s a bit early to start tossing those numbers around.
      - Anonymous
        
        You did see his beginning qualification “This last term…,” right? The numbers are also skewed upwards due to the fact that the majority of decisions are unanimous (about half of all cases this term). Only a quarter of cases this term had 3 or 4 dissenters. Your willful ignorance and clear bias is showing.Looking at the percentage agreement of non-unanimous decisions is much more useful.
        
        Interestingly, Scalia and Thomas were not in the top ten pairs according to percentage of agreement It is also noteworthy, on the topic of these comments, that Scalia was only in ONE of the top ten pairs, which is less than any other Justice. So accusing him of being “lock step” with anyone is frankly amusing.
- Cowicide
  
  I can’t believe: – that Scalia actually did the right thing
  
  If we look at his past history, I’m sure his actual motivation was much less about the rights and welfare of the general citizenry and much more about defending corporations (and lining their pockets and, by proxy, his own).
  
  But, at least he did the right thing by accident despite himself. That’s good, I suppose.
  - gravytop
    
    I suppose that’s why Scalia strongly defends the Confrontation Clause too, right? Rights of corporations explains everything.
    - Cowicide
      
      This
  - quickbrownfox
    
    Your cynicism regarding Justice Scalia’s motives will be welcome here, but he actually has a reputation for being strong on free speech, even when giant corporations are not in the equation. From the Oyez project:
    
    Scalia’s pursuit of strict interpretation, judicial restraint, and bright-line distinctions in the law has led him to surprising votes in his years on the bench. He has puzzled or pleased many conservatives and liberals by voting consistently in favor of free speech. Scalia provided the critical fifth vote, much to the dismay of conservative activists, in striking down a Texas flag- burning prohibition. He also ruled that a St. Paul, Minnesota, prohibition against hate crimes violated freedom of speech.
    - Cowicide
      
      Your cynicism regarding Justice Scalia’s motives will be welcome here, but he actually has a reputation for being strong on free speech, even when giant corporations are not in the equation.
      
      I see your point, but keep in mind this is same guy who banned media from his speech where he received an award for supporting free speech.
      
      I never said Scalia was stupid and that situation with his own speech above is actually very telling if we are to look at the big picture:
      
      He votes consistently for “free speech” but then radically shuts it down by giving corporatists the power to drown out most free speech.
      
      Pretty diabolical if you ask me. Not stupid… but diabolical.
      - jflux
        
        exactly!
      - Anonymous
        
        Both of your allegations are patently absurd. Banning media from a private ceremony is IN NO WAY relatable to the First Amendment. Every single Justice on the Court would approve of the ability to have that decision. Trying to criticize him for this for “not supporting free speech” is ridiculous. Of course, that does not mean he cannot be criticized for hiding from the media, or for anything else rationally related to banning the media.
        
        Secondly, the notion that Citizens United actually limits speech in any way is hilarious. The case at issue was a private organization (not connected to any candidate) raising private donations to make a movie critical of Hillary Clinton. The decision upheld the right for private organizations and individuals to support a political view without government interference. If you want the New York Times to be able to endorse a Presidential candidate or for your local animal shelter to be able to support a local animal-friendly councilman or for a money-making blogger to be able to collect money for an ad critical of a political candidate, then that decision was required. The fact that the decision had any dissenters is rather horrifying regarding the ability for the government to suppress speech from sources arbitrarily deemed unpopular.
        
        These issues do not take much independent thought, but they do require some. I am an extremely socially liberal, pro-abortion, pro-drug legalization, anti-death penalty nerd. But regardless of my knee-jerk feelings, reality is reality. And that requires actually and objectively judging people on their own merits, as well as the conclusion that in order to protect free speech, we need to actually protect free speech.
      - Cowicide
        
        Banning media from a private ceremony is IN NO WAY relatable to the First Amendment.
        
        Um, you didn’t get my point. I’m not going to dumb it down for you. Try reading what I said again in context… slower this time.
        
        Secondly, the notion that Citizens United actually limits speech in any way is hilarious.
        
        You are amazingly clueless of the horrible ramifications of the ruling. Educate yourself.
      - Anonymous
        
        Have you actually read the Citizens United majority? Get back to me after you do that. You obviously either have not or just ignored 90% of it.
        
        That editorial is emotionally charged nonsense. Allowing corporations to fund political speech is not giving them “ultimate authority.” To claim otherwise is to assert that we should limit the speech of the majority in order to “balance out” ideas for every candidate. So what next, are we going to prohibit private spending endorsing Democrats and Republicans because they both spend WAY more than third party candidates? It’s sheer nonsense. The cherry-picking of quotes is also quite amusing. Jefferson actually wanted to limit government power over businesses so that the government could not support it and thus be subverted by it (which is exactly what happened).
        
        Citizens United has not caused the sky to fall, despite the cries of horror from clueless liberal sources. The editorial categorically says unions cannot keep up with corporation (as if every corporation supports all Republicans), but that is false: both pro-Democrat and pro-Republican spending has increased relatively equally. Hell, Obama’s campaign raised a ton more direct and indirect campaign money — way more than McCain. He almost certainly will again (I’m sure he will have the health care industry vote, unless the law is struck down in the meantime). Note that the substantive ideas attributed to the Chamber of Commerce are neither quoted nor cited. It is hilariously delusional.
        
        Citizens United was a necessary decision as long as we allow for elected/appointed representatives of organizations to speak for the organization. The ruling not only upheld the rights of those in private industry, but also the speech rights of, say, the New York Times editorial board to endorse a candidate and to collect donations in support of that candidate. It did not overturn an entire history of precedent; it overturned laws passed since the 90s, mostly regarding and since McCain-Feingold (zomg a Republican supporting campaign spending restrictions????). Never before has the government been able to prohibit private political speech as it tried to do in Citizens United.
        
        According to the pseudo-logic of the opposition, what is perfectly acceptable for non-profits centered around a political ideology to do should be prohibited from for-profit organizations (except for the media!) whose members and representatives believe the same thing. And that’s even assuming there can even be a meaningful line drawn between media and non-media sources. In the age of TV and internet, anyone trying to disseminate information is part of the press. Otherwise, you’d have to figure out where to draw any sort of rational line between for-profit bloggers, non-profit bloggers, media businesses wholly/largely owned by a private corporation, media business with a large variety of entirely separate corporations with no majority, newsletters published by corporations, non-profit political organizations, non-profit media organizations, etc. etc. etc. about which ones have the right to support a political opinion and those that don’t. I argue that it is impossible.
        
        The very idea that the decision somehow destroys “free speech” because it allows people with more money to spread their ideas easier is akin to saying we need restrictions on majority speech because its ideas spread more than minority views. It is absurd and unworkable. Free speech means free from GOVERNMENT interference. It does not mean the government can limit the speech of one private party because it decides there has been enough of that certain message. That is a content-based speech regulation, which is patently evil. Every liberal free-speech advocate (of which I am a very adamant one) should be praising the decision.
        
        I love Ginsburg; if I had to pick a Justice I agree with the most, it would probably be her. But she was wrong in that case. Allowing the government to interfere with private speech is a far worse thing than allowing people to make political speech, always. That was the principle in Snyder v. Phelps, and it is just as true today. Just because people have a knee-jerk reaction that corporations are evil and we need to punish them does not change the horrifying realities behind letting government regulate political speech by private parties. Regardless of how you feel about corporations (and of course they are all self-interested shysters), the decision and result is a much lesser evil than the alternative.
        
        I look forward to the next election so that spending will show that the sky still is not falling and pro-Republican messages will not take over the world. Hopefully then some of this nonsensical hyperbole will end.
      - Antinous / Moderator
        
        So what next, are we going to prohibit private spending endorsing Democrats and Republicans because they both spend WAY more than third party candidates?
        
        Fuckin a, bubba! That’s a great idea.
      - Cowicide
        
        I look forward to the next election so that spending will show that the sky still is not falling and pro-Republican messages will not take over the world. Hopefully then some of this nonsensical hyperbole will end.
        
        Uh, if you’d actually been paying attention instead of just listening to yourself talk… you might have noticed there ALREADY has been elections since the decision and it’s already benefited republican campaigns who are aligned with corporatists.
        
        Organizations like Americans for Prosperity have already spent millions running misleading ads bashing health care reform, progressives, immigrants, and American Muslims in order to elect politicians who are nothing more than corporatist lackeys.
        
        How about YOU get back with me once you research your way out of a wet paper bag. You can start by looking at the effects the ruling has had on Wisconsin.
        
        Real world results instead of your fantasy bullshit.
- Antinous / Moderator
  
  Check Scalia’s and Thomas’s Facebook pages and see if either of them has changed his relationship status to It’s Complicated.
- mausium
  
  “I can’t believe:
  - that Scalia actually did the right thing”
  
  You’d think with how “surprised” people get with Conservatives like Ron Paul that more would be familiar with the Stopped Clock principle.
WeightedCompanionCube

Woah, wait a minute. I’m not saying I agree with the CA law. But I don’t see how it can be called unconstitutional.

Keep in mind the law wasn’t based on the ESRB rating. If it were, the law would have probably been struck down sooner: There are no penalties for selling R-rated movies or music with Parental Advisory stickers to minors. Some stores choose to require proof of age and limit sale and because they could arguably be seen as negligent and open to civil litigation if they don’t.

However, pornography has also been determined by the Supreme Court to be free speech, and there are criminal penalties for distribution to minors. There’s no rating to authoritatively determine porn: NC-17 replaced X and most porn is never seen by the MPAA anyway. So how is the determination made if not by an “I know it when I see it” evaluation of the content? If a video game was unquestionably pornographic, you couldn’t sell it to minors.

If that is constitutional, how is applying the same logic to violence in video games unconstitutional?
- Anonymous
  
  I believe they found precedent in the historical context of children being exposed to gore and violence. Scalia brought up the imagery of children’s stories like Hansel and Grettel, in which the antagonist was baked in an oven. I guess if the Brother’s Grimm had put more T&A in their stories, neither pornography or violence would stand up to the constitutional test, but as it stands, porn and obscenity still is reason to enact legal restrictions against it.
- Nick15
  
  It basically boils down to these simple things:
  * Someone creates something that others find objectionable.
  * That someone wishes to sell their creation to others, which is the only way to “use”/”consume”/”view” the creation.
  * The government then writes a law preventing them from selling it (“you can’t express yourself to other people in this way”), effectively preventing people from seeing creation and thus silencing the creator.
  
  The actual situation is sort of a roundabout way of telling this story, requiring a slight stretch of definitions, but it STILL boils down to “the government had just said that ‘you can’t express yourself to other people’”, which is still in violation of their First Amendment rights. That is to say, First Amendment violations are still First Amendment violations, regardless of the fact that it really only affects a small subset of a small group of people who are prevented in selling their work to a small subset of a small group of people. (That’s also why illustrated child porn is still legal, despite its objectable nature, since no real child is put into harms way in their creaton, and as such is thus covered under the First Amendment.)
- Nick15
  
  Or I should say that this was more about “the government made a law that says you can’t express yourself to someone else” and less about “defending children”. Also consider that “violent video games” is not nearly as specifically defined as “pornographic” is(*), an thus something as simple as Super Mario Bros–and Mario’s genocidal tendencies against turtles–could be defined as “violent” and thus subject to the law. As such, I think the fear is that that CA law could be used to prevent the sale of something as benign as Super Mario Bros to minors if enough people declare it as “violent”.
  
  Furthermore, the only way to “express” oneself with video games is to allow someone to play them. Thus, preventing the sale of them effectively silences the video game maker. That is, it’s not like there is another way for the video game maker to express themselves apart from the sale of their works…
TNGMug

Censorship to children is a “free speech” issue? Really? Free speech by the children, or by the content sellers? Since when is “free speech” = “free access to children”.

I think it’s already been said, but by the same logic, when is the supreme court going to strike down the laws barring minors from purchasing pornography?

We get all up in arms for the idea that our children should be banned from seeing people get blown up and shot. But talk about sexual content and we’re tottaly grossed out. Pornography aside, think of the movie “Blue Valentine”, which got an NC-17 rating because it had an extremely emotional (and entirely unsexy) sex scene in it…. that which could NOT have been witnessed by minors.
Anonymous

WeightedCompanion; most of your questions are answered in the opinions. You should read them.
Scalia says,

“Californiaâ€™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. Instead, the State wishes to cre-ate a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting chil-drenâ€™s access to depictions of violence. And Californiaâ€™s claim that â€œinteractiveâ€ video games present special problems, in that the playerparticipates in the violent action on screen and determines its out-come, is unpersuasive.”
Anonymous

Actually, restricting access to movies or music or any media probably IS unconstitutional. Access to movies is restricted by age only in the theaters, but that counts as access. But no one’s brought the case yet.
moiremusic

Someone correct me if I’m wrong, but it’s not illegal for kids to buy explicit movies or music, either. But the movie, music, and games industries are all self-policing. Ratings boards of each (MPAA, RIAA, ESRB) determine what rating (or warning) each product receives, and the retailers and theaters agree to comply. This is why a 10-year old can’t go to Wal-Mart and buy Grand Theft Auto. Most importantly, parents should be familiar with the ratings and warning of each, and decide which movies, music, and games are appropriate for their kids. I think we need less laws from the government (porn being an exception), and more oversight by parents.
- WeightedCompanionCube
  
  The content industry is for the most part self-policing, because they make a lot of money, therefore they are wide open to a lot of civil suits if they are not. But why then are there laws governing the sale of pornography? You can argue in the absence of laws, the adult industry would self-regulate to CYA. On the other hand, you can argue violence is as bad as explicit sex, so there should be more law.
  
  Regulate all or regulate none, or you create double standards that make people think they can get away with saying “violence is as bad as sex, so there should be a law…”
Anonymous

Who knew The Magnificent Seven were gamers?
Anonymous

Scalia likes anything violent, particularly if it is said to inspire the worst sort of personal behaviour in human beings. This opinion is totally in character for him. He’s hoping that violent games really do make kids murderous sociopaths, because that’s his vision for America.
- Bevatron Repairman
  
  The notion that Justice Thomas and Justice Scalia vote in some unprecedented (or unequalled) lock-step is just nonsense. One really ought to rectify some of the noise about non-controversial cases or not-readily-policized stuff (a interstate water case, for instance) to make much sense of it, but here are some recent numbers from ScotusBLOG about justice agreement that should be reviewed before making categorical statements about voting affinity.
  
  http://www.scotusblog.com/wp-content/uploads/2011/06/SB_agreement_061711.pdf
phisrow

Does anybody else find it rather ironic that Justice Thomas was the one who decided to go down the “strict interpretation according to the mores at the time of writing” route(albeit only selectively: I’m pretty sure that the founding fathers would have given you a collective “LoLwut?” at the notion that 15,16, and 17 year olds were “children”, rather than, say, “recent veterans of the revolutionary war” or “already been married for a couple of years now”)?

I can think of a number other state-level limitations on freedom that would be entirely constitutional under his reading(ie. basically anything representing a social change after the late 18th century that isn’t explicitly modified by later amendments.) It would be illegal to enslave people, to deny votes to women, or to 18+ year olds; but virtually anything else would be fair game…
- Antinous / Moderator
  
  I’m pretty sure that the founding fathers would have given you a collective “LoLwut?” at the notion that 15,16, and 17 year olds were “children”, rather than, say, “recent veterans of the revolutionary war” or “already been married for a couple of years now”)?
  
  George Washington married at 27, Thomas Jefferson at 29, John Adams at 28…
  - phisrow
    
    True; but a collection of statesmen and intellectuals(some of whom had been up to interesting things before age 18) isn’t exactly representative, and that collection would have been well aware of the habits of their social inferiors, whether they agreed with them or not…
  - Anonymous
    
    Antinous, immediately after the American Revolutionary war most parents were not married. Marriage was for educated landowners, and generally happened for economic reasons. George Washington clearly married for money, for example, long after a commoner would already have started a family. Working class folks often claimed to be married (when it was advantageous to do so) but church records indicate that most people did not get married before having children, and even so marriages were often at a very early age.
    
    You might find this chart interesting; it has an error in it (the age for Delaware in 1880 should be nine for girls, and seven for boys, not seven unilaterally) but it gives you an idea what the age of consent was in times past.
    
    http://chnm.gmu.edu/cyh/primary-sources/24
    
    That low age in Delaware, BTW, indicates a conservative legal community; that’s the age that Medieval Canon law specified in the 12th century. The same canons specified puberty (typically 12-14 in those days, 9-12 now) as the age of marriage, and for most of human history puberty has been the age of marriage.
    
    Comparing modern societies with historical data is hard and often leads to false conclusions. People loved their children just as much in 1880 as they do today, but most people didn’t object to teen pregnancies back then.
    - Antinous / Moderator
      
      The average age for menarche in the 1840s, which is the earliest reliable data was nearly 17.
- adamnvillani
  
  15,16, and 17 year olds were “children”, rather than, say, “recent veterans of the revolutionary war” or “already been married for a couple of years now
  
  As for the first matter, Andrew Jackson was held as a POW by the British in the Revolutionary War at the age of 13.
  
  But as for the second matter, that was a lot less common than people today assume. I’ve read in some places, but can’t remember where, that there were different patterns of marriage age in different parts of Europe in the early modern period. I could be remembering wrong, but by my recollection in Eastern Europe both brides and grooms tended to be young (younger than 20 or so); in Southern Europe grooms tended to be into their 20s while brides tended to be younger than 20; and in Northern Europe (where most Americans in the 18th century would have been from) both brides and grooms were into their 20s. Apparently this had to do with men having to be well enough into their careers to establish their own households.
  
  This post has some info on the subject:
  http://early-moderneurope.blogspot.com/2008/10/family-and-home.html
  
  The nuclear family was especially long-standing in England, dating back at least to 1400 â€“ rather than to the Industrial Revolution as is sometimes stated. Within this two-generational structure (parents and children) people married relatively late, and this had clear implications for family size. Such marriages produced c. four to five children (excluding miscarriages and stillbirths).
  - adamnvillani
    
    Just to follow up on what I wrote earlier (honest, this is relevant! It speaks to how the Founders thought of teenagers), researchers developed the “Hajnal Line” separating western and eastern Europe’s marriage patterns (two zones, not three as I’d reported earlier), with those east of the line marrying young but those west of the line marrying in their mid-20s, at least as far back as the 16th century.
    
    http://en.wikipedia.org/wiki/Hajnal_line
    
    There’s speculation that the Western European marriage pattern may have had something to do with the rise of the middle class, capitalism, less absolutist governments, etc.
cowtown

Without having read any of the opinions, I would hazard a guess that Thomas dissented because the Constitution doesn’t contain the phrase “video game” and therefore they do not deserve protection. That man takes originalism to its logical extreme, which is either insane or lazy.

I can also plainly see I’ve failed in my effort to be funny, but only because Thomas makes it hard to exaggerate his position.
ecobore

Ah yes, America!!! It is perfectly OK (indeed encouraged) for small children to undertake virtual ‘kills’ of their foes online, but god forbid that they should see a naked breast (from which they were no doubt fed as infants!)
No wonder the US is so screwed up about sex and has such a high murder rate!!!
Anonymous

hassenpfeffer, you are not correct.

Thomas’ votes are similar to Scalia and concur about 90% but votes with Alito and Roberts are much less frequent, about 70% or so. These types of voting similarities are very common among justices with similar judicial philosophies. Liberal judges have the similarities in votes among themselves.
Anonymous

Violence kills, sex creates.
professor

I find it interesting (and a little bit sad) that most of the discussions here and elsewhere have pretty much all been about points of law and very little is said about the children. As I understand it, the law doesn’t stop kids playing the games; it just stops them from buying it themselves, thereby (hopefully) ensuring at least some level of parental supervision and guidance.
I’ll probably get shot down for saying this, but I think parents are usually the best judges of when their children are emotionally ready for Grand Theft Auto etc, and making sure Little Timmy can’t spend his pocket-money on it behind their backs it a good idea.
jflux

Justice Breyer nails the biggest problem supported by this ruling – a key hypocrisy underlying some of America’s deepest problems – represented by a simple question: what makes a picture of a nude person worse than a game where people are tortured and killed?

Had “Brown” won, it would have been no more than a parking ticket law for the military-industrial complex – akin to the fine for selling “pornography” to minors – and the “free speech sanctity” of video games and of this country would not have been affected one iota.

Instead, this ruling is another blatant sign – along with the economy – of U.S. decline via greed, short-sightedness and denial.
adamnvillani

Pornography aside, think of the movie “Blue Valentine”, which got an NC-17 rating because it had an extremely emotional (and entirely unsexy) sex scene in it…. that which could NOT have been witnessed by minors.

An important distinction is that the MPAA rating system (which had myriad problems of its own, but I’ve done enough threadjacking at BoingBoing for one day) does not carry the force of law and is an example of self-regulation by the industry. Unless Blue Valentine were found to be pornography, which would trigger an exception to the First Amendment (the merits of that are being debated here, too), there would be no legal consequences against a movie theater that sold a ticket to a minor (including a 17-year-old — interesting that the NC-17 cutoff lets you in at 17, not 18).

The Comics Code Authority was also “voluntary” (*cough* under duress *cough*) but the comic book publishers whittled away at it and eventually dropped it altogether; it never had the force of law.
Ugly Canuck

I’ve not read the ruling, but IMHO this is not the best advertisement for un-conditional free speech.

So ….shall all restrictions and bans on advertising directed at children whatsoever be found “un-constitutional” as well?

Funny precisely how the hands of legislative bodies in free democracies are bounded by Constitutional provisions.

In Canada, this issue would be much more a question of actual evidence, (rather than simply lawyers deciding black-letter law, as here) of whether or not this specific limit on speech is demonstrably justifiable in a free and democratic society.

IMHO Canadian free speech rights are not so “absolute” (that is to say, not quite so “legally divorced” from actualities) as those of the USA. But, in defence of such, our limits DO require actual evidence of their effectiveness, that is, of their rationality, in combating some demonstrable, actual harm – which I do not think the California legislature had as to these games, in any event.
billstewart

According to today’s discussion on KQED (San Francisco public radio, but a locally-produced show rather than National Public Radio), Breyer wants to protect the children, and Thomas’s position is that the Founders never intended the First Amendment to apply to minors (?!?!wtf?!). Scalia thinks the Founders wanted to protect speech about violence, but not about sex or a few other issues.

The KQED talk show spent most of its time discussing how much video games actually influence children’s behaviour, how much they’re addictive or not, and about how different studies and meta-studies came to their conclusions, often getting opposite results with the same data. None of the panelists talked about video games intended to propagandize children, like America’s Army, or whether that influenced the case, but they were mostly sociologists, not lawyers.
Anonymous

The above comments expressing shock that Scalia voted the way he did and that Thomas went against the other conservatives demonstrate an all-too-common partisan ignorance of the act Justices. I am strong socially liberal, but I only would have been shocked if Scalia went the other way. He is one of the best protectors of free speech on the bench; Scalia absolutely ridiculed California’s counsel on oral arguments. Breyer, a so-called liberal, is one of the worst (along with Alito). Stevens, a recently retired liberal Justice, was also notoriously bad on free speech issues (he would have upheld a law prohibiting flag burning).

There are other examples where Scalia (and sometimes Thomas) will write or join a very “liberal” opinion. Scalia is the most adamant protector of criminal defendants’ confrontation rights under the 6th Amendment (and authored the landmark case), and Thomas usually joins him (the only exception I can think of is Michigan v. Bryant, a case where even all the liberals except Ginsburg also abandoned Scalia). Breyer and Kennedy are the biggest dissenters in those cases. The 4th Amendment’s warrant requirement is another area where Scalia is generally pro-defendant.

Not that I am a Scalia or Thomas “supporter.” For instance, I think Scalia’s dissent in Lawrence v. Texas is one of the most shameful things to come out of the Supreme Court in modern times. But I have actually looked into their opinions and votes and have a basic understanding as to each of their individual ideologies. There is no clear partisan split on every single issue, and one actually has to look into what each Justice actually says and does to see that — and not what partisan hacks on TV say.

One caveat: I did say that each individual Justice has their own ideology. However, in the case of Alito, by far the worst Justice on the bench, that ideology is apparently “whatever my flagrantly partisan, fully-right-aligned mind determines would be the outcome that I would personally prefer.” See: his *facepalm* worthy dissent in Snyder v. Phelps.

In response to WeightedCampaignCube: obscenity (“hardcore” or non-artistic pornography) is a well-documented exception to protected speech. It is completely arbitrary with no basis in logic or reality, but it has been there since the founding. The Court was correct when it noted all the precedence in support, but incorrect in that it deemed such nonsense worthy of continuing application.
Anonymous

Oh, and a big case where Thomas was right and both Scalia and the liberals were clearly wrong: Scalia joined the liberals in Raich v. Gonzales, which affirmed the government’s power to prohibit state-approved growing marijuana for exclusively personal use based on the interstate commerce clause. Thomas, along with Rehnquist and O’Connor, argued strongly that the government should not have such power. Every single liberal, on the other hand, approved of it. Try to rationalize that one with partisan logic.
MarkM

How is this possible?
Thomas voting AGAINST the other 3 Fox News Justices.
Breyer voting AGAINST the other 3 Mainstream Justices.
3 Fox News and 3 Mainstream Justices agreeing on something.
:mind blown:

Kennedy must’ve been pissed that he couldn’t be the swing vote
and get to write his fancy-ass majority opinion.
Slydiad

You can indeed argue that violence in entertainment is just as “bad” for kids as sex and vice versa, but U.S. constitutional law makes it almost impossible for governments to treat them the same way (That is, if they want to regulate them. You could obviously treat them the same by just not regulating either one.).

As the opinion discusses, there are a few categories of speech that do not get first amendment protection. At all. Ever. This includes stuff like “incitement” and “fighting words.” It’s why something that very obviously is speech, like “Hey, I’ll pay you $500 to kill my rich uncle” can still land you in jail. It’s where the “you can’t yell fire in a crowded theater” thing comes from. The theory is that everyone writing the constitution assumed at the time that the government *could* regulate these exceptional types of speech, so they couldn’t possibly have meant to include them under the broad protection of the first amendment. People argue about how historically accurate this theory is, but it’s very solidly established Supreme Court precedent that’s not getting overturned anytime soon.

“Obscenity” is one of those unprotected categories. Just as a matter of the historical record, violence has never been treated as a special exception in the same way. It gets the same protections as bigotry, radical political opinions, and almost everything else.
Brainspore

I just find it amusing that there are so many people out there who treat violence in media as an even remotely new thing. That sick fuck Shakespeare filled “Titus Andronicus” with rape, murder, infanticide, mutilation and cannibalism but there aren’t any parents groups out there trying to protect children from the Bard.
Anonymous

While I applaud the decision, do take note that this is a decision that allows the further trashing of the younger generation for more time wasted on crap and utter drivel. What better way to ensure the upper classes remain the upper classes. This kind of decision needs to go along with other decisions if it were done as a means of maintaining a freer society. Sorry,what I read when I read this decision is “The hoi-poli are free to limit themselves by wasting large chunks of their lives on crap.”.
IronEdithKidd

Nice graphic, Rob!