Breyer’s dissent in Brown pulls no punches

Monday, June 27, 2011

Justice Stephen Breyer didn’t mince words — or images — in a broad dissent in today’s 7-2 U.S. Supreme Court decision in Brown v. Entertainment Merchants Association that voided California’s law banning the sale or rental of violent video games to minors.

In the wide-ranging 19-page dissent that was one page longer than the majority opinion written by Justice Antonin Scalia, Breyer attacked the decision for closing the constitutional door on a never-enforced law that he termed a “modest, at most” restriction on free speech.

Breyer’s minority arguments may well resonate most with parents concerned or uncertain about the impact of extreme violence on their children. (Justice Clarence Thomas also dissented, on different grounds.)

In plain language, Breyer questioned “what sense” the decision made in light of the still-valid, 1968 Court ruling in Ginsberg v. New York that it’s OK for states to forbid the sale of images of nudity to young people?

“What kind of First Amendment would permit the government to protect children by restricting sales of (an) extremely violent video game only when the woman – bound, gagged, tortured and killed – is also topless?” Breyer asked. The anomaly “disappears once one recognizes that extreme violence … without literary, artistic or similar justification” can be at least as harmful to minors as nude photos, he said.

In his opinion for the Court, Scalia wrote that historically depictions of violence have never been regulated by government, citing fairy tales such as “Snow White,” “Cinderella” and “Hansel and Gretel” and modern-day TV cartoons. But Breyer said the case “is ultimately less about censorship than it is about education.”

Calling interactive video games “excellent teaching tools,” Breyer said that education “is about choices. Sometimes, children need to learn by making choices by themselves. Other times, choices are made for children … in my view, the First Amendment does not disable government from helping parents make such a choice here.”

But Scalia turned the parental rights argument on its head in the concluding lines of the majority opinion. He said the California law “abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent games are a harmless pastime.”

Scalia and Breyer also disagreed as to the value of behavioral and psychological studies that California officials said show a link between video violence and violent behavior in children. Scalia dismissed the studies, saying their findings “having 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.”

But Breyer, while acknowledging the studies are not definitive, nonetheless cited a number of them – even offering a 16-page list compiled by the Supreme Court library as an appendix to his dissent. He said the Court should simply have deferred to California legislators’ concerns, based on the findings, that “violent video games can cause children psychological harm.”

Ultimately, today’s ruling pitted concern against certainty — concern over what violent video games may do to children vs. the majority’s demand for “certainty” that the games are harmful. The decision rests on the majority’s refusal to create another exception to First Amendment free-speech protection, even for those under age 17, without historical precedent — such as exists for libel or child pornography or sexual imagery — or credible scientific proof of direct harm to children.

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