This article first appeared in the St. Louis Beacon, June 27, 2011 - The U.S. Supreme Court ended this year's term Monday with two important free speech decisions, throwing out a California law that banned the sale or rental of violent video games to minors and voiding an Arizona campaign finance law that leveled the playing field for publicly funded candidates facing big private spenders.
The decisions complete a run of pro-free speech decisions by the Roberts court. Over the past two years, the Roberts court has provided First Amendment protection for unlimited corporate spending in political campaigns, depictions of animal cruelty, distasteful protests at veterans' funerals and data mining of information in vast computerized databases. (Click herefor a New York Times graphic displaying the major rulings of 2010-11 term and how the justices voted.)
Justice Antonin Scalia's majority opinion in the California video games case was a broad statement of free speech, stating that governments had a high constitutional hurdle to clear when they sought to create new categories of unprotected speech beyond the ones already recognized, such as obscenity and fighting words.
The California law banned the sale or rental to minors of violent video games that involved the "killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a way that a "reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors."
But Scalia wrote that while playing violent video games may not be as cultured as reading literature, the games have just as much constitutional protection.
"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," he wrote. "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.'
"Like the protected books, plays and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."
Aesthetic and moral judgments about art and literature are left to the individual, not the government, Scalia added.
Scalia said that the California law was both too underinclusive and overinclusive to be upheld under strict First Amendment standard that requires a law to be narrowly tailored to achieve a compelling government purpose. The law was underinclusive because it did not deal with similarly violent depictions in other media, including Saturday morning cartoons. It was overinclusive because not all the children prohibited from buying the games have parents who disapprove.
Scalia had five votes for his view of the First Amendment. Justice Samuel Alito, joined by Chief Justice John Roberts, agreed that the California law was unconstitutional because it had not been written as carefully as it should have been to comport with the Constitution. But they would not have gone as far as Scalia in extending broad constitutional protection to violent video games. Alito wrote that the court should be more cautious than Scalia when considering new technology.
"In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this court should proceed with caution," Alito wrote. "We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators."
The two dissenters were from opposite wings of the court -- the conservative Justice Clarence Thomas and the more liberal Justice Stephen Breyer. Thomas argued that at the time of the adoption of the First Amendment children had no free speech rights beyond those that parents granted them. Breyer said the California law was a "modest restriction" on free speech and was written much like child pornography and obscenity laws, which the court has upheld.
The Arizona campaign finance case struck down by the court in a 5-4 decision provided publicly funded candidates for office with extra public funding when they were up against a privately funded candidate with deep pockets or friends with deep pockets.
The provision was triggered when more money was spent on behalf of a privately funded candidate than the state had provided to publicly funded candidates. This included not only the campaign funds used by the privately funded candidate but also independent expenditures by outside groups on behalf of the privately funded candidate.
Once triggered, the law provided all publicly funded candidates in the race against a privately funded candidate $1 for every extra dollar spent on behalf of the private candidate. The publicly funded candidate could receive up to a ceiling of twice as much in public funding as the initial allotment.
The majority striking down the Arizona law was the same one that announced the controversial Citizens United decision last year opening the campaign process to unlimited political expenditures by corporations. Chief Justice Roberts wrote the opinion for himself, Alito, Scalia, Thomas and Justice Anthony M. Kennedy.
Roberts said that the Arizona law improperly burdened campaign speech by putting the government to work in opposition to the privately funded candidate. Previously, the court had struck down a Millionaire's Amendment to help those opposing a candidate spending millions of his or her own money. Roberts said that the Arizona law put an even greater burden on speech than the Millionaire's Amendment.
The chief justice wrote that the Arizona law improperly tries to level the playing field in a political race. This is not a proper government purpose justifying restrictions on free speech, he wrote. The only government purpose that can justify such restrictions is the effort to combat corruption or the appearance of corruption, and the Arizona law only did that indirectly.
The court noted that it was not ruling that public financing was unconstitutional. It just can't be done in the discriminatory way that Arizona did.
William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.