Opinion, Berkeley Blogs

Trump v. Scalia on violent video games

By William Turner

In response to the Florida school shooting, President Donald Trump promptly convened a White House summit on what to do about violent video games. He said he has been “hearing more and more people say the level of violence on video games is really shaping young people’s thoughts.” He expressed concern about some of the things his 11-year-old son is watching. He summoned industry executives, parents groups and three Republican members of Congress, but no social scientists.

The meeting was doubtless a diversionary tactic, attempting to change the subject from gun control and deflect the public’s attention from the unflattering or damning headline of the day.

If the president is trying to pin the blame for mass shootings on video games, he will have to denounce the author of the Supreme Court’s only decision on the subject, the late Justice Antonin Scalia. But Trump has always touted Scalia as the very model of a Supreme Court justice and vowed to appoint justices (like Neil Gorsuch) who see the world just like Scalia.

Scalia’s decisive opinion came in Brown v. Entertainment Merchants , in 2011. Led by Scalia, the court ruled that a California law barring the sale of violent video games to minors violated the First Amendment. The state argued that violent video games have so little social value, and their dangers so clearly outweighed their value, that they constituted a category of speech wholly unprotected by the First Amendment (like obscenity, perjury, etc.). The state also tried to defend the law by citing some studies considering whether playing games caused violent behavior or were harmful to the psyches of young gamers.

Scalia scoffed at the state’s contentions. First, he declared that popular entertainment games qualify as “speech” within the First Amendment’s free speech clause. He acknowledged that freedom of speech “exists principally to protect discourse on public matters,” but said it “is difficult to distinguish politics from entertainment, and dangerous to try.” Like books, plays, television and movies, “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.”

Next, Scalia pooh-poohed the state’s justifications for the law. He clearly didn’t believe video games were a serious problem. He pointed to the state’s concession while the case was in the courts that it couldn’t show “a direct causal link between violent video games and harm to minors.” He noted that a few psychological studies showed some temporary effect “on children’s feelings of aggression,” but said those effects “are both small and indistinguishable from effects produced by other media” (including Bugs Bunny cartoons).

Scalia also reasoned that the law was defective in singling out the purveyors of video games for disfavored treatment while doing nothing about booksellers, cartoonists and movie producers who traffic in violent material. The law also had a capacious loophole: California was “perfectly willing to leave this [assertedly] dangerous mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK.” In other words, Scalia said, if the state were truly concerned that exposing minors to violent games is a serious social problem, it wouldn’t allow parents to buy them for their teens. And it would restrict violence in other media.

Scalia’s usual conservative ally Samuel Alito bitterly disagreed. He went off and watched for himself some of the most notorious games, and he found the violence “astounding.” He saw that “victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces….Blood gushes, splatters, and pools.” Alito also revealed his personal revulsion at the immorality taught by some of the games: “There is no antisocial theme too base for some in the video game industry to exploit,” pointing to games allowing the player to reenact the murders at Columbine and Virginia Tech, the assassination of President Kennedy and engage in ethnic cleansing by choosing to “gun down African-Americans, Latinos, or Jews.”

In response, Scalia acknowledged that “reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.” But he said these differences are not constitutional ones: “Justice Alito recounts all these disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression.” He added, “Crudely violent games, tawdry television shows and cheap novels and magazines are no less forms of speech than The Divine Comedy” and are not deprived of free speech protection.

Scalia, of course, was the court’s leading originalist, believing the Constitution should be interpreted the way the 18th century framers would have understood it, not considering changing times or technology. During the oral argument in the case, he badgered the state’s lawyer, saying that it “has never been understood that the freedom of speech did not include portrayals of violence” and asking what else the state might propose to outlaw in the name of protecting children. This prompted Alito to remark that, “I think what Justice Scalia wants to know is what James Madison thought about video games.”

In that same oral argument, Justice Anthony Kennedy asked the industry’s lawyer, “Why shouldn’t violence be treated the same as obscenity?” In his opinion for the court, Scalia said the court had previously defined obscenity to include only sexual material, not violence. This in turn prompted Justice Stephen Breyer, in a dissent, to note that the court long ago said states could ban the sale to minors of magazines containing nudity, and to ask “What kind of First Amendment would permit the government to protect children by restricting sales of [an] extremely violent video game only when the [female victim] – bound, gagged, tortured, and killed – is also topless?”

Indeed, Breyer identified an anomaly in First Amendment law and in Scalia’s rulings on it. In cases involving sexual material, the court has consistently upheld the government’s authority to ban not merely legally obscene material but also “indecent” material on broadcast, ranging from George Carlin’s Seven Dirty Words monologue to spontaneous shouts of “fuck” at awards ceremonies to a nanosecond’s peek at Janet Jackson’s breast during a Super Bowl Show. When the FCC’s power to outlaw such “indecency” was challenged by the networks, Justice Scalia found the government’s position “rational” and dismissed the need for any social science studies. He tiptoed around the real words used in the telecasts, using “F-word” and “S-word” euphemisms. Responding to the point that the FCC had no evidence that a “fleeting expletive” is harmful to children, Scalia said, “There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them…. Here it suffices to know that children mimic the behavior they observe….Programming replete with one-word indecent expletives will tend to produce children who use…one-word indecent expletives.”

In short, in the name of protecting America’s children, during his long career on the court Scalia was quite willing to suppress sexual material. But in the video games case he was untroubled by violent material. He demanded hard evidence that violent video games actually harm children, while in the indecency cases he was willing simply to assume, with no evidence, that indecent broadcast material harmed them. What does it say about our culture that we’re so squeamish about sex but quite willing to allow our children to wallow in violence?

So if President Trump really wants to do something about violence, he may not want to look for guidance to his model justice, Antonin Scalia. (Is it relevant that Scalia was also the author of the landmark Second Amendment decision finding an individual right to have guns?) Nor will Trump’s own appointee, Neil Gorsuch, be likely to disavow the Scalia precedents, as Gorsuch virtually worships Scalia and looks to his jurisprudence as the beacon the court must surely follow. (One wonders what Scalia, or Gorsuch, would say about broadcasts of Trump’s language and behavior on the Access Hollywood tapes. Indecent? Yes, therefore prohibited. Violent? Not very, therefore perfectly acceptable.)