The increasing interactive reality and violent nature of the games prompted the law, which state officials supported by citing a bevy of studies showing possible links to real-world violence. But in his majority opinion, Justice Antonin Scalia dismissed the studies as inconclusive, writing that the legitimate government role in protecting children “does not include a free-floating power to restrict the ideas to which children may be exposed.”
In earlier cases, the justices upheld free-speech arguments when they:
-Struck down campaign finance laws that prevented corporations from direct spending in support of a candidate, leaving intact, for now, a ban on direct contributions, in Citizens United v. FEC;
-Held that a federal law aimed at banning so-called “crush videos” involving animal cruelty, was too broadly written, and could be applied to legal activities such as videos showing bow hunting, in United States v. Stevens;
-Supported the right of Americans to express their opinions even in the most repugnant fashion, in a case involving a Topeka, Kan., based group organized as Westboro Baptist Church that protests outside military funerals, in Snyder v. Phelps.
-Said even if states have an admirable goal of encouraging the use of less-expensive generic drugs to lower health care costs, a Vermont law could not prevent the use prescription information in marketing brand-name medications, in Sorrell v. IMS Health Care, Inc.
The Brown decision rejected the creation of a new exception – “violence” – to the First Amendment’s broad protection of free speech, echoing the Stevens’ ruling.
Scalia wrote that while there is a historical legacy of restrictions on sexual imagery available to youngsters, depictions of violence have never been regulated by government. Scalia cited the gore and violent acts included in fairy tales such as “Snow White,” “Cinderella” and “Hansel and Gretel” and modern-day TV cartoons.
“Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated…. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it,” Scalia wrote.
In all of the free speech cases this term, the Court reminded us that our free speech rights don’t rest on values or concerns of the moment, nor are they subject to – as the government argued in Stevens – a balancing test of the value of a particular category of speech against its impact in society.
In response to that view, Justice John Roberts penned lines that will echo for years as a defense against those who would silence views – or images – they don’t like or don’t agree with.
“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Nothing the Court decided this week, or these last two terms, or any opinion or legislative act, requires us to endorse views we are inclined to reject or to accept speech – or video games – that we find repugnant. That’s not in the 45 words of the First Amendment.
But in strong terms, Brown and its companions do restate in no uncertain terms the meaning of those majestic words: Free speech is just that – “free.”
Gene Policinski is senior vice president and executive director of the First Amendment Center and is a veteran journalist whose career has included work in newspapers, radio, television and online operations.