The First Amendment Giveth—And Taketh Away, Too

By Andrew Cohen

The fate of two free-speech cases illustrates the Supreme Court's divisions on key constitutional issues

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The United States Supreme Court ended its term Monday with two major First Amendment decisions. In the first, the Court struck down a California law that sought to prohibit the sale of violent video games to minors. The ruling prompted strong dissents from one of the Court's most conservative members, Justice Clarence Thomas, and one of its most liberal members, Justice Stephen Breyer, who rarely agree on anything. It also once again brought out the latent parent in Justice Samuel Alito.

The second major decision Monday, involving an Arizona campaign finance law, offered a series of reminders--of the Court's dubious Ctizens United ruling, of its passionate embrace of broad First Amendment principles in political cases, and of the challenges clean-election advocates face in reforming the system. The Court's conservatives, in a far-reaching 5-4 ruling, struck down a legislative scheme designed to reduce political corruption by providing "matching funds" from public coffers to candidates who eschew private contributions.

The violent video game case, styled Brown v. Entertainment Merchants' Assn, has gotten a lot of coverage over the years, because so many minors play violent video games, and because one of California's justifications was that there is an "interactive" feature in playing the games that distinguishes it from typical objects of First Amendment law. In other words, because kids are actually pulling a trigger on their hand-held consoles to kill their on-screen targets, California argued that it had a broader and more compelling interest in limiting the sales of violent games to minors.

No dice, Justice Antonin Scalia wrote in a memorable opinion. "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," he noted in Footnote 4. "But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy." The games are not pornography, the majority concluded, and thus aren't susceptible to legal precedent that keeps porn away from minors. And with that, the Court turned to California's justification for infringing upon the rights of minors to buy Call of Duty. Justice Scalia wrote:

The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason. They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology."

In the view of the Court, all those concerned about the effects of violent video games--federal and state legislators, educators, social scientists, and parents--are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in "kind" from reading a description of violence in a work of literature.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.

Justice Breyer, in dissent, took the argument one step further. He would have upheld the California statute as a compelling response to a legitimate problem that was less about the high art of first amendment principles and more about the ability of government to steer its young citizens away from potentially damaging activities. He wrote:

California's law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.

If the Entertainment Merchants Assn decision gave minors the right to buy violent games under first amendment principles, the Court's decision in the Arizona case, Arizona Free Enterprise v. Bennett, took away from state legislators the ability to try to do something creative about the influence of private money in state political campaigns. The AFE ruling is simply another brick in the wall this Court recently has established to prevent meaningful campaign reform. It will have significant impact upon the existing campaign finance laws of other states and no doubt will chill efforts to construct new ways to confront the age-old question of money's corrupting influence on power.  

To Chief Justice John Roberts, who wrote the majority opinion, these concerns evidently are beyond the scope of the Constitution or the Court's power to interpret it. He declared that Arizona's "matching funds" law was constitutionally unfair to "privately financed candidates" because it gave their opponents public funds. Creating such financial equality by legislative fiat, Justice Roberts wrote, imposed an unconstitutional burden on privately-funded candidates and thus unlawfully impinged upon their free speech rights. The Constitution, the chief justice wrote, does not allow the state to "increase the speech of some at the expense of others."

One way to track the Court's ideological divide-- so familiar now in these politically-charged cases-- is to measure the justices' analysis about the effect of the Arizona law. Chief Justice Roberts wrote: "Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand." But Justice Elena Kagan, who wrote the dissent on behalf of herself and the Court's three other progressives, came down precisely on the other side of that equation. In her view, it was the majority's opinion, and not the Arizona statute, which would preclude robust political debate. Justice Kagan wrote:

A person familiar with our country's core values--our devotion to democratic self-governance, as well as to "uninhibited, robust, and wide-open" debate, might expect this Court to celebrate, or at least not to interfere with, the second State's success. But today, the majority holds that the second State's system--the system that produces honest government, working on behalf of all the people--clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

And that's how the Court's 2010-2011 term ended. With a great deal of divisiveness over core constitutional issues, with a same-planet, different-world approach to the import of legal precedent and the factual records below, and with no meaningful sense that things are likely to get any better any time soon.


Image Credit: Midway Games

The ruling prompted an interesting concurrence from Justice Alito, who has established himself, this term especially, as the Court's societal conscience. Although he agreed with the result, he warned his colleagues that they were dismissing California's concerns a little too quickly. On behalf of millions of parents all across the country, Justice Alito wrote:

This article available online at:

http://www.theatlantic.com/national/archive/2011/06/the-first-amendment-giveth-and-taketh-away-too/241089/