Alan K. Henderson's Weblog


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Monday, June 27, 2011

Brown, Governor of California v. Entertainment Merchants Association:

Ann Althouse has the story:

The Court strikes down a California law that prohibits the sale or rental of [gory] "violent video games" to minors. The statute defined violent games in a way that "mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York." But sex and violence are different: "obscenity is not protected expression" under the First and Fourteenth Amendments. California was trying "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 says today.

In comments I reacted:

I was dumbfounded when I heard the news on the radio [on ABC Radio News]. I couldn't imagine how a 7-2 ruling could come out of such a case. I couldn't figure out how the Constitution could be spun to be made relevant to such a case.

It never occurred me to think of it as a Free Speech case. "It's expression, so it's speech per the First Amendment." Hell, everything is expression. Playing "Glenn Reynolds vs. the Zombie Apocalypse" is expression. Banning "Glenn Reynolds vs. the Zombie Apocalypse" is expression. Killing real zombies is expression. Drinking zombies is expression.

Weapons and video games and mixed drinks are not forms of verbalization. What in the hell makes video games a type of speech?

I have just read Thomas' dissent (ruling here). He puts a lot of effort in detailing the long history of legal restrictions placed exclusively on children - more effort than he should have.

He should have limited himself to laws directly relevant to First Amendment liberties and upheld by the courts. One item touches on the right to peaceable assembly: "In the Massachusetts Colony, forexample, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent." Did similar laws persist after the Bill of Rights was ratified? If so, did anyone ever challenge them?

What about laws restricting the press from selling its wares to minors? It seems to be that's the likeliest place to look for precedent.


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