Supreme Court Finds California Law Restricting Game Sales to be Unconstitutional, but it's a Narrower Victory Than it Appears

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Seven (out of nine) members of the Supreme Court agreed the law violated the First Amendment. Scalia delivered the Supreme Court's opinion (and was joined by Kennedy, Ginsburg, Sotomayor and Kagan), finding that "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." In the words of the opinion, "...a legislature cannot create new categories of unprotected speech..."

It's not all roses for those who believe video games are protected speech. While Alito and Roberts concurred with the court's judgment, an opinion written by Alito suggests that they agree with the intent of the bill, but (as proponents of the bill hoped) simply felt the bill was not specific enough to avoid constitutional conflict. So, while the opinion on this specific law was 7-2, opinion on the principles involved was actually 5-4.

Thomas filed a dissenting opinion arguing that the decision "...does not comport with the original public understanding of the First Amendment." ignoring precedent to engage in conservative judicial activism, while Breyer's dissenting opinion argues that the law is necessary to protect children.

While this is a victory for games as free speech, keep in mind that it's a narrower victory than it might first appear. Even so, we can hope that this decision will discourage politicians from wasting taxpayer dollars to pass unconstitutional laws to appease a portion of their electoral base.

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This page contains a single entry by Editor published on June 27, 2011 10:14 AM.

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