This American life of ours has long been pro-violence and anti-sex, unless the two can be merged so that violence is the dominant theme. The U.S. Supreme Court reaffirmed that historical record on Monday in declaring California’s ban on the sale of violent video games to minors unconstitutional while continuing to deny constitutional protection to purely prurient sexual material for either minors or adults.
The California law that the court struck down prohibited the sale or rental of violent games to minors “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” unless the work, taken as a whole, possessed redeeming literary, artistic or social value—qualities that limit censorship of sexually “obscene” material.
The Supreme Court, in essence, said no—“sexually assaulting an image of a human being” is protected speech, but depicting graphic sexual activity that is nonviolent and consensual is not.
“California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter,” Justice Antonin Scalia wrote in the majority opinion. “That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’ ”
As Scalia put the prevailing argument that says yes to violence and no to sex, it is only violence that possesses deep cultural roots going back to our favorite fairy tales. Arguing that “violence is not part of the obscenity that the Constitution permits to be regulated,” Scalia made clear that the problem is with the sex and not the violent or misogynist behavior that some critics argue will result from material the court defines as obscene: “Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.”
Scalia’s opinion is actually quite thrilling in enunciating an extremely broad definition of the free speech rights of minors. But it is simply bizarre in dismissing the claimed harmful effects of violent depictions while still insisting on the strictest puritanical view of the dangers of sexual imagery. “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,” he said. Unless sex is involved, in which case, as Scalia quotes an earlier court decision: “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”
In that regard, Scalia’s view is a vast improvement over that of Clarence Thomas, who held in his dissent that minors have no First Amendment rights at all. But Scalia is unnerving in his dismissal of the concurring opinion of Justice Samuel Alito Jr., in which Chief Justice John Roberts joined. Alito argued that the California statute addressed “a potentially serious social problem” but that “its terms are not framed with the precision that the Constitution demands. …”
Scalia’s withering dismissal of Alito’s concerns is revealing of his tolerance for violent imagery as opposed to that which is merely sexual: “Justice Alito has done considerable independent research to identify video games in which ‘the violence is astounding. … Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. … Blood gushes, splatters, and pools.’ Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. … 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.”
Hear, hear to such a bold defense of the right of minors to consider a full range of controversial thought, but if the claimed harmful effects of minors’ exposure to violence, gore and racism do not warrant a governmental limitation on free speech, why isn’t sexually prurient material—for adults if not minors—deserving of equal First Amendment protection? The unspoken answer that runs through Scalia’s opinion, and that of the court down though the ages, is that violence is normal while sex is obscene.