Remarks on the occasion of RU Constitution Day 2011
Thank you for coming out this afternoon for a special panel considering the US constitution.
It’s particularly fitting for Radford University since, across the mall, the RU library houses some of the archives of US Supreme Court Justice Arthur J. Goldberg, who during his term on the court in the 1960s was an outstanding champion of the First Amendment. In Goldberg’s view the right of free speech was that of “an absolute, unconditional privilege” despite any harm that may flow from excesses and abuses”
Justice Goldberg often reminded us that historically, as a nation, we have a bedrock commitment to the principle of free speech.
And we have recognized a very few limited categories of exceptions.
These exceptions are –
- obscenity
- and direct incitement to imminent violent action.
Other exceptions to free speech are subjected to the strictest possible scrutiny, which means they must be very narrowly tailored to serve a compelling interest.
Many apparently good causes have gone down to defeat in the courts because they fail to meet this very strict test.
For example…
Just this Monday, you will be unhappy to hear, the Virginia Supreme Court overturned a state law against spam email, saying the law is an overly broad prohibition on anonymous free speech.
Last year the US Supreme Court overturned a law prohibiting videos of extreme cruelty or torture to animals. That was the Stevens case.
And we’re all familiar with the long list of library books that would have been banned without this strict scrutiny standard. In fact, there are many children’s books that depict violence — Hansel and Gretel, Lord of the Flies, Lord of the Rings …
Everyone hates spam, everyone hates cruelty to animals, and everyone hates media that expose children to violence.
Those are all good causes, so what on earth were the courts thinking?
The answer is that the courts were thinking about the principle of equal justice under law.
They might well have been thinking about the innocent people who would be hurt by a law that was too vague and could be enforced / or not // at the whim of government officials. For example, in the Stevens case, if a law against possessing videos depicting animal cruelty were to stand, could someone with an instructional video on hunting get arrested? What about animal rights activists and journalists who might have these kinds of videos?
So I think its safe to say that for a long time, the courts have been resisting the expansion of vague new exceptions to the First Amendment.
Which brings us to Calif. Gov. Brown v. Entertainment Merchants Association —
The case challenges a law passed in 2005 by the state of California (rep. here by Gov Jerry Brown). The law would have made illegal the sale of violent video games to children under age 18.
The case had been through many lower court challenges over the past five years. It was argued before the Supreme Court last fall and a decision was issued this June.
California had what is said was a compelling state interest, and it had two interesting legal arguments.
The state interest was to prevent the incitement of violence in children.
The legal arguments were:
- that video games are a novel form of media and need to be more closely regulated than other media.
- that they could use the three-part obscenity test from Miller v. California(1973) to determine what is violence unsuitable for children.
- The Miller test is (put simply) that a reasonable person, taking a work as a whole, can apply contemporary community standards to find out if a work lack serious literary, artistic political or scientific value.
So – In the Supreme Court opinion of June 23, 2011, the court answered the easy question first. Can a new form of media be more closely regulated?
The answer was No. We tried that with cinema. When film censorship was overturned in 1952, the court said: “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.
And it was the idea behind the Communications Decency Act of 1996, which would have opened the door for regulation of the Internet and Web. That law was overturned within a year.
So even if it’s a new media, it is still entitled to First Amend. Protection.
The more difficult question was next. Could the Miller test for obscenity be stretched to include violence as well? This is a notoriously slippery legal test when applied to obscenity because the area of concern is so difficult to describe.
The guy who said he couldnt define obscenity but I know it when I see it? That was a supreme court justice Potter stewart in a 1964 case about a French movie (Jacobellis v Ohio)
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
So why would we use a test that difficult to apply when it comes to an entirely different and even more difficult area of law ?
So in shooting down the California video game law, the Supreme Court did not buy the argument. By a 7-2 vote they decided that AB 1179 was not just vague and overly broad, but rather, that it was an alarming attempt to expand the area of obscenity, which is not protected by the first amendment, into the area of violence, which is protected.
But the big question underlying the case is whether video games actually incite violence.
The court did not dispute that in general the government has a need to prevent violence. But it was “not persuaded” that this was a good way to do it.
As the court noted, evidence presented by Dr. Craig Anderson does not prove that violent video games cause minors to act aggressively.
Not to say there is not or may not be a problem, but there are many problems that cant be addressed by the law.
Admittedly, there is a long-standing concern about the “cultivation” of violence through the media which is of course reflected in documentaries like Bowling for Columbine.
So there is a problem. But there are many problems that can only be made worse by applying overly broad laws.
Its easy to understand the moral objection to having children play violent video games but making a law that is constitutional is the wrong way to go about it.
So finally, the balancing act between social responsibility and individual freedom in US law must always give freedom the preferred position
Absent any compelling proof that video games harm, the court did not want to create a new class of regulated speech content in a way that would not be applicable to similar content in other media.
So in other words, there may be problems, but legal restrictions are not the most effective way to deal with them.
