How Justice Scalia Helped Save Video Games

Chris Wallace Interviews U.S. Supreme Court Justice Antonin Scalia On "FOX News Sunday"

Lots of questions have been raised over the unanticipated death of Supreme Court Justice Antonin Scalia on Saturday. His sudden death and subsequent search for successor have been highly politicized, coming in the middle of one of the tensest presidential primary races in our living memory.

Justice Scalia, regarded as an insightful legal scholar and constitutional originalist, worked on the country’s highest court for almost three decades. His death leaves behind a highly divisive legacy as one of the most conservative voices in the Supreme Court in modern era.

Despite his legacy as an ardent conservative, on one case however, Justice Scalia appears to have voiced the progressive side of history. There was one time when the legal fate of video games was far from certain. And when everyone from powerful senators to state legislators were making efforts to restrict the gaming industry, they were stopped by Justice Antonin Scalia, of all people.

A statement from the Entertainment Software Association in the past weekend remembered Justice Scalia’s vital role in ensuring that video games were able to flourish and progress like other forms of media, noting his majority opinion in a 2011 case that protected video games as a form of free expression under First Amendment protection.

“The Entertainment Software Association joins those who salute the service and mourn the loss of Justice Scalia. In 2011, when our industry defended the rights of creators and consumers of video games before the U.S. Supreme Court, it was Justice Scalia who authored the historic majority opinion. He declared, with no ambiguity, that video games, like books, movies and other forms of expression, are deserving of First Amendment protections. It was a momentous day for our industry and those who love the entertainment we create and we are indebted to Justice Scalia for so eloquently defending the rights of creators and consumer everywhere.”

In 2005, a law was passed by California which restricted the sale of violent video games to minors just like cigarettes and alcohol. The Video Software Dealers Association immediately challenged it and it was blocked by a District Court order ruling it unlawful. However, then-governor Arnold Schwarzenegger vowed to fight the ruling, which then brought the case to the 9th District Court of Appeals. It endorsed the District Court’s ruling.

In 2010, the case moved up to the Supreme Court, and a 7-2 decision was made for Brown vs. Entertainment Merchants Association. Justice Scalia wrote the majority opinion which supported the lower courts’ rulings. He reasoned that games were an expressive medium and as such, they should fall under the same protections as granted to other types of creative speech by the First Amendment.

“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. Under our Constitution, ‘esthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’ “

Scalia’s judgment also highlighted that decades of research studies that were conducted to find out links between real-world behavior and violent video games “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).”

He further opined that the collaborative nature of video games was not essentially different from the invitation for audience investment by older narrative media.

“The better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

The state of California, meanwhile, claimed that video games warranted special attention as an interactive medium. They were alleged to be more likely to incite violence in susceptible children playing them.

The dispute about the possible dangers of violent video games went back to the 90s, when ultra-violent video games like Mortal Kombat became increasingly realistic and went so far as to provoke horror among conservative activists and parents. That initial outcry was the reason behind creation of ESRB ratings system. Nevertheless, the debate continued to rage on and still does.

This ruling, however, does little to negate Scalia’s broader legacy as a partisan jurist who compared homosexuality to bestiality and abortion laws to slavery.

[Photo by Paul Morigi/Getty Images]