Dissent in Supreme Court Decision Means War Isn't Over

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Dissent in Supreme Court Decision Means War Isn't Over

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The Supreme Court ruled in favor of games this time, but they may have have left the door open to laws restricting game sales in the future.

Today is a good day for videogames. The Supreme Court ruled that it is not constitutional to restrict sales of games based on violent content. A majority of the nine justices voted in favor of striking down California's proposed law, but the decision was far from unanimous. Two justices (Justices Clarence Thomas and Stephen Breyer) voted in favor of the law, claiming that minors were not protected by the First Amendment, but two justices wrote a concurrent opinion that merely said the language and framing of the California law didn't work. Justice Alito left open the possibility that a properly worded law could get his vote in the future.

Thomas and Breyer voted in favor of the law because they believe the First Amendment was not meant to protect minors' choice in viewing all media without the parent's consent. "I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians," wrote Thomas.

The law stated that it is up to the parents to decide whether the kids can play restricted games as long as they buy them, and Thomas had no problem with a law upholding the parent's right to choose but restricting sale directly to minors.

More troubling, however, is the argument brought forth by Alito and Chief Justice Roberts in the concurrent decision which claims games are different from books or movies and could be subject to different consideration.

"I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires," Alito wrote. "I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us."

Justice Alito believes, and Chief Justice Roberts agrees with him, that games are an inherently different medium than books or movies, and therefore might deserve more scrutiny. For Alito, it is the detail and interaction which must be considered as he illustrates with a thrilling argument:

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Alito does not believe that we should dismiss the different qualities of videogames when considering their legality. "When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand."

Luckily, Alito and Chief Justice Roberts did not think it necessary to vote differently than the majority, but they do raise concerns that we may not have seen the end of legislation restricting videogames.

Today, we won the battle, but the war is far from over.

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people need to take responsibility for themselves and stop demanding that the government do it for them.

Aw did you have to be such a buzzkill? I was having fun celebrating.

The war's over. Maybe Roberts and Alito might sway, buy Scalia and others with any common sense will not. A 7 to 2 verdict would become a 5 to 4 verdict. Plus, passing these laws and bringing them to court is expensive. Californians should be outraged that their tax dollars got squandered on nothing. This isn't even a bridge to nowhere. It's just a pile of paperwork and lawyers getting paychecks. I hope my state (or any other) doesn't try and pull this crap again.

We call this "grasping at straws to save face".

attackshark:
people need to take responsibility for themselves and stop demanding that the government do it for them.

/debate

Seriously. Own up, people. You want the government banning anything you don't want your kids to get a hold off? There goes every M movie, adult book and explicit record ever made. You wanna blame violence in a video game for your mental instability? There goes anything that could possibly invoke someone to anger, and let's not forget, more deaths have been caused because of footbal brawls than video games.

A little less QQ, a little more parenting and personal responsibility.

That Thomas guy has a disgusting view of minor rights. Good to know that someone in our Supreme Court thinks that a parent should have the right to prevent any or all contact with their children despite age and the child's consent until adulthood.

That said, at least we won, and the dissenters still don't outnumber those that voted it was flat-out unconstitutional. I haven't lost faith in our Supreme Court yet.

Didn't this already set a legal precedent? They can't just straight up change their minds, that's irresponsible. Also, off topic, I love how kids aren't granted the right to free religion or the right assemble. How messed up is that? If a teenager is in a Christian home but wants to be Jewish, his parents can simply deny him that right. Good show, America.

The states would have to come up with better arguments than they have to reopen this issue. It isn't going to happen anytime soon, and the majority decision basically says that laws restricting the sale of violent media of any kind can't exist under the consitution as it reads now. Unless we get a /very/ liberal court sometime in the future, it's unlikely this will be revisited.

The article is a nice read Greg, but I don't think it's anything we should worry about at this point. The majority of the court, not counting Alito and Roberts, ruled that such a law singling out games is unconstitutional. That pretty much puts the brakes on future legislation.

Still, 5 of the justices voted because they felt that video games have constitutional rights, regardless of their nature. If another case reaches this far, I think it would most likely be dropped by the current justices and just reject it at face value.

zelda2fanboy:
The war's over. Maybe Roberts and Alito might sway, buy Scalia and others with any common sense will not. A 7 to 2 verdict would become a 5 to 4 verdict. Plus, passing these laws and bringing them to court is expensive. Californians should be outraged that their tax dollars got squandered on nothing. This isn't even a bridge to nowhere. It's just a pile of paperwork and lawyers getting paychecks. I hope my state (or any other) doesn't try and pull this crap again.

Pretty much this. I mean a 5-4 is a little close for comfort sure, but state courts having been shooting down these laws left and right for years - it took this long for the Supreme Court to even hear one of these cases. I have a hard time imagining the precedent to begin tilting in other direction any time soon.

I don't think we'll have much of an issue unless we start losing the justices that were in the 5 that voted it was outright unconstitutional.

I always fail to see how pressing buttons and making one of three pre-designed choices makes an experience "interactive" and "confusing" for anyone with their foot not already in the door to madness.

Must The Escapist frame it like this? "The battle's won but the war's not over?" Why breed fear like that? Don't you know people were crying and holding their copies of Ico near to their breasts, with bated breath waiting for this fateful decision that --- who am I kidding, there was never any fucking chance of this thing passing.

Just as they'll never have a chance at attempting it again. Like many have said before, this was a huge waste of tax money and I doubt Californians are happy that it's all going towards restricting the sale of bleeps and bloops.

Atheist.:
Didn't this already set a legal precedent? They can't just straight up change their minds, that's irresponsible.

The Supreme Court can reverse their own decisions. It's pretty unlikely that this court would do so, but a future court with a different set of judges could potentially reverse the ruling. It has happened in the past, though I believe that it's usually striking down something that was previously ruled as being allowed, and not the reverse.

That said, the majority ruling in this case is very solid and specific. That ruling was that video games are as fully protected as free speech as other forms of media. Five judges supported it, and it's the best outcome possible from the case.

The minority ruling joined only in saying that in the law as written "violent video games" and other similar phrases were too vague to be constitutional. Two judges supported this viewpoint, which is basically a "This one is bad, but you can go back and try again" mandate.

So it's possible, but not that likely.

Even if Alito and Roberts both vote with Breyer and Thomas on the hypothetical next one, that's only four out of nine. The five who wrote the majority opinion were very clear that the wording was not the (only) problem here, and there is little reason to believe that they won't vote the same way again.

Never thought Scalia would be against this law and Breyer would be for it, but the other votes don't entirely surprise me. Kennedy was the one I was worried about, but unsure.

Greg Tito:

...there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book,..."

Yeah. books can get away with a lot more then video games. I got more traumatized reading Blood Meridian then i would have Mortal Kombat. But guess which one would get banned if they got the chance? Yes video games can cause problems with people who have pre-existing conditions but the same can be said for other things. Didn't someone try to kill the president because of catcher in the rye?
But now is time for celebration. This is a big step. One Step closer to art.

Well there is a rating on the box to show you that 7 year olds shouldn't be butcher there fellow man in GTA or Call of duty but no dening they will anyway.Laws only work so well as long as we abide by them other wise they're nothing more then guidelines.

I agree with Alito that games are different because of the interaction and that needs to be considered, but he pulled a ridiculous strawman there.

Instead of Crime and Punishment, he should be looking at say, Saw, which is also in HD "realistic" graphics, sound, noise, visceral affects and is actually in 3D unlike most games played on 2D screens.

So everything he said was silly, except for the key point. He doesn't inspire confidence in me as a judge and in a way I'm iffy about the way judges have all this power.

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Uh huh.
Soooo what about a book written from a first person perspective with graphic illistrations and discriptions in a choose your own adventure style?

Or would that not be a book now?

Man I really want to write this now!

I don't think i'll add any illistrations though, feel free to google your own if you've got the stomach for it :P

Seriously though this isn't a very good argument at all.
Also more specifically = "and feels the sensation of blood on his face and hands" this suggests the use of imagination and i'm pretty sure that can be used with books as well unless VR suddenly took off while I wasn't looking.

Edit: To be fair as the user above stated games are kinda different due to the interactivity but I think that could have been stated a bit better than the above example from the supremem court.

Well, I'm glad this is settled at least for a while.

I'm kind of surprised that, in the book argument, they never brought up things like the controversy over Catcher in the Rye. Also, they didn't bring up films at all; you may not get to control the action in a movie, but they can have the exact same objectionable stuff as video games and they don't tend to get nearly as many complaints.

Besides, why do we keep needing laws in place of parenting? Kids are typically carded for video games and where exactly do they get the money, regardless? I've even heard of parents/guardians buying M-rated games for the kids despite the listed rating and warnings from employees. I'm not saying that's a good choice on the part of the parents, but why were people even thinking of doing any sales banning when it's typically the parents doing the purchasing anyway? There needs to be accountability.

Virgil:

Atheist.:
Didn't this already set a legal precedent? They can't just straight up change their minds, that's irresponsible.

The Supreme Court can reverse their own decisions. It's pretty unlikely that this court would do so, but a future court with a different set of judges could potentially reverse the ruling. It has happened in the past, though I believe that it's usually striking down something that was previously ruled as being allowed, and not the reverse.

That said, the majority ruling in this case is very solid and specific. That ruling was that video games are as fully protected as free speech as other forms of media. Five judges supported it, and it's the best outcome possible from the case.

The minority ruling joined only in saying that in the law as written "violent video games" and other similar phrases were too vague to be constitutional. Two judges supported this viewpoint, which is basically a "This one is bad, but you can go back and try again" mandate.

So it's possible, but not that likely.

At risk of somewhat sounding like a jerk....this really sounds like "BUT THE FUTURE IS STILL IN DANGER!"

Of course a future court could rule in another direction and shoot down this decision, but then that would be along the same lines of "separate but equal" court cases. At first it was happily embraced by all and the courts supported it, but then later on the courts changed their mind and "separate but equal" was shot down.

Overall, I find this examination of this case to perhaps to be a little alarmist seeing as how the ruling went so heavily in favor of video games. While it could be changed in the future, the amount of time it takes to get to the supreme court, and the amount of money and even ability of a law to get past the scrutiny of everyone is quite a bit to swallow.

I don't think we can usually declare a debate on any particular medium of entertainment "Over" (Heck, we still fight about having sex and a certain amount of violence on TV), but this will likely put the debate on an absolute standstill for a while.

"and feels the sensation of blood on his face and hands"

erm sorry but Ive never been made to feel that by a game Ive seen it and heard it but never have I actually felt blood splatter on my skin. seen and heard like you do a movie all I did was press a button and you do that with movies too when press play.

I was hoping that the SC might have received an education in what games actually are during this case, but it appears that if any such thing happened, Alito missed out on it completely. In most games, none of what he said actually happens when a player kills an npc. In the most expensively-made AAA monuments to the gaming medium, into which thousands of people have poured the best years of their lives, maybe two or three of those things happen.

The lessons we take (or at least the ones I take) from games are not about what it's like to kill a person. Sight and hearing are not enough to convey that information. The lessons we take from games are actually quite similar to the ones we take from books and movies.

Know what lesson I took from GTAIV? Revenge is hollow and self-destructive. That other guy from Niko's unit, the one who moved on and tried enjoying his life? He's one of the only people in the game who is actually happy, while Niko ends the game having lost nearly everything important to him.

From Mass Effect? The world is a better place if one is not a dickhead. Not everyone can be Shepard, and so not everyone will make a noticeable difference for the world (or galaxy) but you can at least improve things in your own small chunk of it by following Wheaton's Law. Yes it's tempting to be a renegade sometimes (or often) but it's generally best for everyone concerned, including you, if you ignore those temptations.

Assassin's Creed? Don't be too quick to accept something as the truth, or reject counter-intuitive things as false (one of the many meanings of "nothing is true, everything is permitted.")

Saint's Row? Realism and seriousness are overrated, have some fucking fun every once in a while.

Sylocat:
Never thought Scalia would be against this law and Breyer would be for it, but the other votes don't entirely surprise me. Kennedy was the one I was worried about, but unsure.

See, I would have been extremely surprised if Scalia had ended up supporting the law, considering how he acted during the initial arguments.

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Virgil:

Atheist.:
Didn't this already set a legal precedent? They can't just straight up change their minds, that's irresponsible.

The Supreme Court can reverse their own decisions. It's pretty unlikely that this court would do so, but a future court with a different set of judges could potentially reverse the ruling. It has happened in the past, though I believe that it's usually striking down something that was previously ruled as being allowed, and not the reverse.

That said, the majority ruling in this case is very solid and specific. That ruling was that video games are as fully protected as free speech as other forms of media. Five judges supported it, and it's the best outcome possible from the case.

The minority ruling joined only in saying that in the law as written "violent video games" and other similar phrases were too vague to be constitutional. Two judges supported this viewpoint, which is basically a "This one is bad, but you can go back and try again" mandate.

So it's possible, but not that likely.

More importantly, anyone bringing video game restrictions to the court has to frame their argument in a way that doesn't appear vague and makes a significant distinction between video games and film/print/images. While the interactive nature of the medium has been argued to be that which separates gaming from traditional art (very often by gaming enthusiasts, even), for the most part, the SCotUS views them to be indistinguishable from those traditional artistic mediums, granting them the special protections that come with it.

Virgil:
It has happened in the past, though I believe that it's usually striking down something that was previously ruled as being allowed, and not the reverse.

The only one that come to immediate mind is the right to legal representation as fought for by Clarence Gideon in FLA. Whats interesting is not only did they reverse the previous decision, they ruled in Gideon's favor by a 9-0 vote.

I only remember this because we had to watch the Henry Fonda movie adaptation "Gideon's Trumpet" in law class in middle school.

This may seem childish, but the way I see it, a victory is a victory. Its true we may still have many more battles to come, but for now, lets us be happy for the victory we have received today.

The war may not be over, but we've taken a great step towards ending it.

Thomas and Breyer voted in favor of the law because they believe the First Amendment was not meant to protect minors' choice in viewing all media without the parent's consent. "I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians," wrote Thomas.

I agree that a parent does need to monitor what their child watches and plays, but a person growing up needs to be able to have a voice. But it sounds to me like this fellow is saying that a minor has no right to speak. That's bullshit. I thought it was bullshit when I was a minor, and now that I'm not I still think it's total bullshit. A minor's parents should watch what (s)he plays, views, and reads, but said minor should still have a voice on issues that they want to speak on. Why? If a person doesn't have the right to speak up about anything when they're a kid, then how can we expect them to mature and learn?

More troubling, however, is the argument brought forth by Alito and Chief Justice Roberts in the concurrent decision which claims games are different from books or movies and could be subject to different consideration.

This is quite troubling. Games are different from books and movies in that they're interactive, but there isn't any real proof that video games have many negative effects I can see how watching someone play, say, Manhunt for the first time would make you think otherwise, but a normal sane individual isn't going to go on a murder spree after playing Manhunt.

I know that's pretty much what every gamer would have to say, and for the most part has said, on the subject, but I still felt the need to say it.

I can't believe how close this decision was. I can't believe it. I'm so worried this could turn out to be a Pyrrhic victory. And this isn't just about games. It seems certain justices are intentionally leaving the door open to simply unmake what has always been the First Amendment.

Greg Tito:

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

What a terrible argument. Allow me to modify that paragraph to illustrate why:

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a movie who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who then sees someone grasping an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

There's a difference between books and movies too, but we don't say movies aren't free speech. What if the book is written in second person and the reader is told they are committing acts of murder? Should those be considered less free-speech?

I can understand getting parental consent for video games . . . but not this.

Parents - Don't buy games that your spawn lack the maturity to play. My work here is done.

After reading that one justice's little description on how Games are Different then books... I just have to ask... Can someone please tell me what Videogame somehow uses the magic of "SCIENCE!" to make me feel blood on my hands and hear a skull slowly thud to the ground as a person cries out in pain? Because if that's possible, then that game has more technology backing it's realism factor then even Crysis!

Soviet Heavy:
Aw did you have to be such a buzzkill? I was having fun celebrating.

Still going to celebrate anyway.

Joe Deadman:

To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Uh huh.
Soooo what about a book written from a first person perspective with graphic illistrations and discriptions in a choose your own adventure style?

Or would that not be a book now?

Man I really want to write this now!

I don't think i'll add any illistrations though, feel free to google your own if you've got the stomach for it :P

Seriously though this isn't a very good argument at all.
Also more specifically = "and feels the sensation of blood on his face and hands" this suggests the use of imagination and i'm pretty sure that can be used with books as well unless VR suddenly took off while I wasn't looking.

Edit: To be fair as the user above stated games are kinda different due to the interactivity but I think that could have been stated a bit better than the above example from the supremem court.

You're my hero for making me laugh. I thought that was a weird argument and I had to read it several times to see if I was missing something. I've read that book and what he's suggesting is dumb, maybe he forgot to add that the player would have an existential crisis later....?

honestdiscussioner:
What he said

This is pretty much exactly what my wife was saying. You haz thumbs up. All conditions are green, you are a go.

Can anybody point me to a case in recent decades where a dissenting or minority concurring opinion was a solid basis for a reversal of a Supreme Court decision in a later case?

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