How Antonin Scalia Unintentionally Helped To Save Video Games

Chris Wallace Interviews U.S. Supreme Court Justice Antonin Scalia On "FOX News Sunday"
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Gamers of a certain age will remember that for a long time, the legal fate of video games was far from certain. While it seems obvious that video games would be protected under the First Amendment, a host of politicians, from powerful senators to state legislators, disagreed at one time. And their efforts to restrict the gaming industry would be stopped by, of all people, Justice Antonin Scalia.

In 2005, California passed a law sponsored by then-state senator and future convicted black market arms dealer Leland Yee, AB 1179, that banned the sale of “violent” video games to anyone under 18 and required labeling, more or less treating video games like pornography. The bill was duly signed into law but later blocked by a lawsuit.

Over the course of five years, the law went through the legal system and finally wound up at the Supreme Court. I distinctly remember telling my GameTrailers editor that gaming was probably done with Scalia, noted enemy of the press, on the court. Scalia, though, surprised everyone with a far-ranging dismissal of California’s law. The majority opinion of the court is particularly withering toward the “Think of the children!” attitude:

[California] 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. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.

Scalia went so far as to cite California’s own high-school required-reading lists back at the state, asking why video games needed to be regulated but Lord of the Flies was just fine. By the end, it was a 7-2 decision; video games were protected speech.

That said, while Scalia’s decision is important, especially enshrining into law the idea that the state isn’t obligated to protect children from ideas their parents find objectionable, this wasn’t a decision about video games, per se. The court’s ruling is largely about the nature of free speech, and whether states can create classes of unprotected speech at will. Nothing in Scalia’s decision betrays an interest in video games. In fact, it appears he didn’t so much as touch a controller, leaving that to Justice Samuel Alito. Interestingly, Alito, who voted with the majority, played extensively and was disgusted by what he found in the games under debate, a complaint Scalia dismissed:

Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression… Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech — whether it be violence, or gore, or racism — and not its objective effects, may be the real reason for governmental proscription.

That said, it’s easy to see how Scalia could have gone in the other direction. One of the findings of the majority opinion is that the notorious Miller test, which has obscenity down as a crime that people know when they see it, doesn’t apply to violent acts. Considering Scalia’s comparisons of homosexuality to bestiality and abortion laws to slavery, one wonders how things might have unfolded if another state had tried to ban games for featuring gay characters or sexual situations.

This ruling does nothing to negate Scalia’s difficult broader legacy as a jurist. But it does mark a strange eddy in the current of his life, and an odd impact a Supreme Court justice had on an art form.