Violent video games in Supreme Court crosshairs?

Just last week, a strong majority on the U.S. Supreme Court ruled that a 1999 federal law outlawing certain videos depicting animal cruelty and other weird practices involving animals (so-called “crush videos”) was overly broad and operated as an unconstitutional infringement of First Amendment rights.  I was one of the few members of the U.S. House of Representatives to vote against the legislation at the time of its passage.  I did so for the same reasons the Supreme Court threw out the statute last week — not because any of us find the activity protected by the First Amendment to be laudable (far from it); but because it sweeps too broadly and attaches criminal penalties to a person’s right to freedom of expression. 

Moreover, it is not as if true acts of animal cruelty would go unpunished without this federal law in place; virtually every state already criminalizes such practices.  The high Court decision, and my vote against the legislation 11 years ago, simply reflect that a federal law restricting such behavior is unnecessary and constitutionally defective.

Now, just a week after that decision, the Court has announced it will take up another video case; this one involving the extent to which states, including California, can prohibit the sale to minors of video games depicting what might be called extreme violence.  Last week’s animal cruelty video opinion may contain some clues as to how the justices might rule in this most recent case they have taken under advisement.

In the crush video opinion, the Court distinguished earlier decisions that upheld limits on the distribution of videos depicting child pornography.  Applying that same reasoning might lead a majority to find California’s law on violent video games (similar to laws in a half dozen other states), to constitute a permissible limit on otherwise free expression.  Still, both a federal trial court and the Ninth Circuit Court of Appeals found the law unconstitutional.  Even if a majority of the Supreme Court justices rule in favor of the state law, it will likely be much closer than last week’s  8-1 decision.

California Gov. Arnold Schwarzenegger, who signed that state’s law five years ago, characteristically has praised the state prohibition.

8 comments Add your comment

Ragnar Danneskjöld

April 30th, 2010
7:00 am

I come to a similar conclusion as our esteemed host, but via a different intellectual course. I believe the court misconstrues the 15th Amendment, by extending the construction of individual rights to incorporate the 1st Amendment. I think the 1st Amendment is merely a limitation on Congress, and that the states were never intended – by either 1st Amendment or 15th Amendment – to be so restricted. A correct reading would allow California to enforce whatever standard is appropriate for California. (Almost an oxymoron, using the words “standard” and “California” in the same sentence.)

John Duncan

April 30th, 2010
9:47 am

@Ragnar – I disagree. The rights to free speech are something that no nation – or state – can take away. I do think that legislatively it should probably be clarified that the Bill of Rights applies to the states – it has by custom over the last 100 years or so, but I do think it would be helpful to make the matter a bit more concrete. “States’ rights” is an oxymoron. Individuals have rights, not states.

Chris Broe

April 30th, 2010
10:03 am

Ban videos of cruelty to animals? Then you couldn’t show footage of the gulf’s oil spill. The thing about off shore drilling is that the amount of oil you get is only enough to kill all the wildlife along the entire gulf coast, yet not enough to affect gas prices or reserves. It’s supreme folly and a tribute to how short-sighted capitalism’s captains are.


April 30th, 2010
12:29 pm

The 7th District Court suggested that a bill to increase awareness of the individual voluntary rating system would be as effective as an outright ban, giving law makers the opportunity to regulate games without raising 1st Amendment issues.

Ragnar Danneskjöld

April 30th, 2010
1:15 pm

Dear John @ 9:47, I think the primary difference between our arguments is that I argue what the Constitution says, and you argue what it ought to say. I think I don’t seriously disagree with your sentiment, just your factual basis. Each state ought to adopt a similar provision, but I think that is the responsibility of each state, and not within the capacity of the Constitution of the central government.


April 30th, 2010
2:16 pm

Danneskjöld –

Amendment 15
” The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

What does this have to do with the 1st Amendment?

The following is from the 14th Amendment:

“No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Note the first 8 words – “No State shall make or enforce any law…”
Plain English or so the Court has held.

The Court has held that some “Bill of Rights” amendments do in fact apply against the States, for example the 1st Amendment. The Court will decide in a month or two that the 2nd Amendment also applies against the States. The case is MacDonald v. Chicago and we are all waiting anxiously for the opinion.

The Court has not said all of the Bill of Rights apply against the States but is rather ruling on them one at a time.

But watch for MacDonald v Chicago. It is going to be a major decision if you are at all interested in 2nd Amendment rights. Can the States infringe on your 2nd Am rights or not? If so, to what extent?


May 1st, 2010
7:28 pm

The First Amendment clearly applies to the states via the 14th Amendment as the court has ruled many times. This law should be stricken!

Chris Broe

May 2nd, 2010
6:07 pm

Why do you think they call it the bill of “RIGHTS”. They could have called it the bill of wrongs or the bill of leftist ravings. Certainly King George and the British Army viewed the preamble that way. I’ll bet the parliament took turns doing five minutes mocking the phrase “the pursuit of happiness” alone. (I’ve always hated that expression. What does it mean? Happiness? Pursuit? I would have taken an extra evening and edited that phrase. Lets see, Life, liberty, and….and….uh…..the….the….uh….the right to name your own poison…how’s that?)

Anyway, after reading the constitutional A-team here discuss the pros and cons of the decision, lorded over by their crack mouthpiece, (whose not so much atlas shrugged as orifice plugged), one can only surmise that when the supreme court has you in their crosshairs, then they’ve got you by the shorthairs ”

Just kiddin…..