Supreme Court Justice Scalia weighs in on video games

As society begins placing more and more blame on media like video games and movies for random acts of violence, the legal implications of where exactly video games stand in relation to the Constitution as well as federal and state legislation are growing heavier. Of the people who could adversely or positively affect the legal future of gaming, Conservative Supreme Court Justice Scalia could be one of the most significant.

Laws of Play was fortunate enough to be granted an interview with the well-respected judge and was even allowed to sit in on a Supreme Court argument; during the interview, Scalia made a few statements that could have fairly large implications on gaming legislation in the near future.

First, when asked if he felt that legislation barring the distribution of “mature” video games to minors was constitutionally sound, Scalia answered an affirmative “yes.” For those of you who are not familiar with Scalia’s position on constitutional law, Scalia is known as an “originalist,” or one who aims to interpret the constitution as it was originally intended by the founders as strictly as possible.

This position towards the distribution of mature games to minors is congruent with legislation like that which banned the distribution of pornography to minors; though some states do enforce laws prohibiting the sale of mature games to minors, there is currently no federal legislation mandating a nation-wide enforcement.

Secondly, Scalia mentioned that “unprotected speech,” which is generally material classified as obscene, could be restricted from citizens of all ages.

Though this statement is fairly open-ended, let’s pick it apart and discuss the implications:

Obscene material, as defined handily on Laws of Play, is defined as follows:

The current test for obscenity was established in Miller v. California, 413 U.S. 15 (1973), and is typically referred to as The Miller Test. The test sets forth three prongs that must be satisfied in order for a work to be considered obscene. The three prongs are: (1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions as defined by applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.

So, digging through the legal jargon, for material to be classified legally as “obscene,” it would have to be guilty of seeming overtly sexual to a normal member of society, contain material that depicts or suggests sex or excretory (that which happens in the bathroom) functions (based off state legislation) and could be found to have absolutely no social merit (the criteria for which being listed above).

Whew. Ok. Anything that can’t be classified as obscene based on the above definition is protected in the constitution and subsequent legislation as free speech. That means, in the nutshell, that video games cannot be banned federally unless they can be classified as obscene (which, as we see above, would be pretty difficult to achieve.)

Essentially, Scalia said that there is a chance that federal legislation banning the distribution of mature rated games to minors could, theoretically, pass. He also said that, from an originalist’s perspective, video games are protected as free speech as outlined in our country’s founding documents.

Though minors will undoubtably still convince adults and parents to buy them video games that are mature-rated, federal legislation would assuredly make such an action slightly more difficult. I am still amazed to this day that parents will look aghast when a school shooting is suggested to be connected to violent video games…right after they buy their kid the latest shooter for Christmas.

For legislation to pass banning the distribution of mature games to minors, the Supreme Court would have to evaluate the constitution, past rulings, as well as the opinion of the American public before making such a decision. Perhaps, if the American public feels that minors shouldn’t have mature video games, they should stop buying them for the little brats; only then will legislation like this be effective.

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