Supreme Court Justice: Video Game Laws Might Be Constitutional

February 20, 2008 -
In a remarkable coup for a game-oriented site, Laws of Play's Anthony Prestia had the opportunity to hang out with U.S. Supreme Court Justice Antonin Scalia - and used the time to ask Scalia how he might regard video game legislation, should it ever come before the Court.

Scalia, the second most senior member of the Court, is a noted conservative. Prestia writes:
I asked [Justice Scalia] whether... he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment...

Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not – he instantly drew the parallel to regulation of pornography sales...

Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment...

Scalia's remarks are especially noteworthy given the dismal track record of state-level video game laws in lower federal courts. To date, all nine laws to have gotten that far have failed. Prestia continues:
The implications of Justice Scalia’s answers are multi-dimensional. First, he suggests that upon appeal to the Supreme Court at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors. Second, his remarks suggest Justice Scalia believes that video games not qualifying as obscenity... are protected by the First Amendment.

Essentially, this means that one of nine Supreme Court justices believes the sale of mature games to minors can be regulated, but that the overall regulation of the medium would most likely be unconstitutional...

Such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents...


Begs the question... How do Playboy/Hustler sales to minors get regulated? Who in gov states they are obscene?

There's no question that it's lots of nekkidness behind that cover. But if it's constitutionally regulated, who judges it to be obscene? It obviously can't be a ESRB for Porn, cause that's not government and would be unconstitutional?

If this is the precedent, that could determine how games are regulated (or not).. what is required?

So games that are actually obscene can be regulated.

Okay, so just like movies that are obscene can be regulated.

So... nothing has changed. we just has a justice who believes that games can have 1st amendment protections.

fuck fuck shit shit damn it damn it all to hell and back. We need them on our side. Gggrrrrrr...... I'm really pissed

> I always thought Scalia was pro-first amendment.

This is of course redundant -- all SCOTUS justices are supposed to be pro-all-the-amendments, plus all the bits before them. His interpretation of the constitution, however, has been unswervingly toward whatever satisfies the extreme right wing, particularly the religious conservatives. This is the same guy who told us that God told him to get GWB elected.

Probably the only justice worse than Scalia is Thomas, the one justice I honestly believe should be impeached, as he doesn't even do his job. He once went an entire session without asking a single question in arguments. But of course he still makes decisions that make Justice Scalia look like Justice Ginsberg.


“For the last two years, four out of the five games that were generally considered completely worthy of the price point were M-rated.”

Not sure where you’re getting those numbers from. According to the NPD, in 2006, only four of the top 20 video games sold were rated M and only one was in the top 10 (Gears of War at #3). Only one of the top 20 PC games was rated M.

By the way, I’m 28.

Andrew Eisen

Yeah, I figured you fell in the “underage” category, and you’re all but confirming it. Nothing against you, but underage children have a different agenda than an adult would when it comes to this debate.

What a copout. I'm an adult, and I agree with Andrew.

Your inability to imagine why an adult would oppose video game regulation is your own problem.

"I don’t see how anyone would oppose the restriction of M-rated games being sold to underage children. The ONLY people that this affects are the children who are already subject to restrictions from retailers, the government, and in rare cases: their parents.

Games may not harm children, but neither does keeping games from them."

Well I am well over 18 and I oppose it. The argument "It doesn't hurt to keep it from them" is not sufficient cause to pass such a law. There needs to be a reason why violent videogames need to be singled out. I don't see that there is one.

If the government regulated game sales to MINORS, then the stores would NOT decide for the parents — they would decide for the MINORS.

But your position is that regulating video games at the point of sale forces parents to "actually MAKE a decision", which is plain false. Parents can remain as uninvolved as ever. It's just that, instead of the parents, the store is the one that gets to tell the kid: "sorry kid, but you can't have this game".

Meanwhile the kid's parents, oblivious and uninvolved, won't ever find out that their kid is playing Manhunt at their best friend's house.

@Del H

"If the parents want to be lazy fucktards, let them but also penalize them for being a lazy fuck."

If we are penalizing them for being lazy then how the hell are we allowing them to be lazy?

It's like saying
"Let them smoke weed but penalize them for doing drugs."

It's self-contradicting.

I haven’t seen any legitimate nor coherent reasoning behind his logic. Actually i’ve seen quite the opposite. It seems very illogical as well as dangerous to restrict the dissemination of ideas, information, messages, viewpoints and opinions to minors. This is because if we do so, then by the time they reach “enter arbitrary age limit for adulthood here” their minds will be a blank and they’ll be unable to deal with the real world as we know it. In essence, it’s an indirect form of mind and thought control by disallowing minors to form their own viewpoints based on uncensored and unrestricted access to free speech materials.

Very well said. It's comforting to know there are still some people out there with a proper sense of morality.

@ yowzers

What problem? There is no problem. What social ills are going to be created by some kid playing Manhunt at his friend's house. If his parents don't care, then why should you or anyone else for that matter? Also your comparison to executing minors for capital punishment is downright moronic. M-rated games are not "adult rights". They are not dangerous like booze and ciggaretes. The government has absolutely NO bussiness telling minors what they can and cannot play on thier Xbox. If parents don't care then I don't see why anyone else should for that matter.

When you mean minors, do you mean just young children? If so i’d say i could agree with that if done properly.

If a very young child is alone at the store with a copy of Manhunt 2 in one hand and $60 in the other, there's something wrong there that has nothing at all to do with the fact that he's holding a copy of Manhunt 2.

As far as I'm concerned, if they're old enough to hang out at the store all by themselves, they're old enough to be sold violent video games.

@Adrian Lopez

I tend to think of it this way. If we are going to ban the sale of free speech material to minors under the basis that the parents find it unsuitable or offensive to them then wouldn't we have to do the same for every single type of Speech or media out there.

Atheist, Jewish and Muslim parents don't want their kids reading the Holy Bible. Therefore shouldn't there be a ban on those under 18 buying or even getting a copy of the Holy Bible?

Religious Fundamentalists don't want their kids reading Harry Potter books, therefore should there be a ban on Harry Potter books to minors?

Conservative Parents don't want their kids reading liberal based literature. Therefore should there be a ban on all liberal based literature to minors and vise versa with liberal parents and conservative based literature?

In the end we'd have to bar the sale of all speech or media materials to minors without parents permission as everything out there could be found offensive in the eyes of some parent out there.

He's a problem.

Seems this is a good thing to me, Stop the sale of M rated games to kids, just like with movies and perhaps people will stop trying to regulate the games that are for over 18s.
Leave the adults to choose what is suitable for themselves, and highlight to those parents that somehow manage to be confused by the M = Mature ratings ( or 18 rating here in UK )

Then perhaps games can be left alone in the same way that movie media has finally to a large degree= saw/hostel etc.

Well that's cool, how often do gamers get to chill with Supreme Court Justices?

Despite what he said the only way we would ever find out how the Supreme Court would rule is if they ever had a case, which has yet to happen. They most likely would not hear it anyway.

"First, he suggests that upon appeal to the Supreme Court at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors."

Which would be fine if it wasn'f for the fact that determining what is a Mature title is done so by a body that is NOT direct from government and therefore unconstitutional. What sort of Supreme Court Judge is he exactly?

@ Bedlambob

One problem. There is NO law on the books in America for movies or music, with the notable exception of Porno. Even this guy admits most games don't hit that level. So not only is it a first amendment issue, he just admitted it's a equal rights under the law issue, which is one of the main reasons the state laws keep dying.

Your idea isn't bad, but if it's not applied to all media, it fails. And it'll be a cold day in hell before the Movie industry allows that.

Sounds like he is stating that if a game fell under current tests for obscene material it could be regulated. Not that all M rated games could be.

That sounds like a reasonable look on things.

But how many games out there fall under current tests for obscene? None that I know of (other than AO games).

What about the 14th Amendment? That no law should be made that discriminates against a particular kind of speech? That's the one that applies more here, not the concept of having a law, but the concept that this law should apply only to Video Games, whilst deliberately ignoring other forms of Media. There is no reason to single out Video Games, even Judge Scalia knows that, and yet they are still to be discriminated against?

I'm from the UK, I don't have a problem with regulation, it's segregation that pisses me off.


That's how I read it as well, if a game is defined as 'obscene' then it can be regulated, but 'M' does not mean 'Obscene' any more than R17 does.

I have no problem with the theory of banning the sale of M rated games to kids. My problem with that idea is when the retailers are subject to fines and criminal proceedings should it happen, as this is something that is incredibly hard to implement.

Underage kids already get their hands on cigarettes, alcohol, pornography, etc through a variety of methods; fake IDs, an older kid buying it for them, simply looking older than the are. They will continue to do this for video games, and it is unfair for a retailer who has been deceived in such a manner to face criminal proceedings due to it.

After all this however, the fact remains that parents are the ultimate factor in what a child does. If a parent is more observant and actually exercises their responsibility and a little guidance, their kid will not do any of the things listed above, no matter how easily it may be for them to get their hands on those products not intended for their age.

Uh oh...this could be trouble

I think EZK got it. The judge sounded like he was talking about the equivalencies of strictly adult-only products (ie Porn, AO games, etc.) and not each and every M Rated game, just like not every R Rated movie.

What I think he's trying to say is:
"I don't care if it's against the Constitution because the state of the videogame industry is of no consequence to me"

In all honesty, though, trying to legally enforce something that's already enforced just doesn't work. I don't think parents would step up any more if "It's store policy" was replaced with "It's the law" considering just how bad modern parenting is.

I work at a GameStop inside a mall where countless times a day a parent will leave their child alone in the store with a fistful of money and then go shop somewhere else. It's horrifying to me when a person walks int he store and tells me that they're just looking for their child, not anything to buy.

I still don't see the problem with banning the sale of Mature games to minors....been standard in the UK for years, probably why people can't gain nearly as much political capital over here as they can in the US.

But my opinion is my own.

CrowX, so you are saying parents are leaving your store up for babysitting....


@Canary Wundaboy Well so many we self regulate it already. Two ESRB is a private organaztion. The Goverment can't adopt a private organaztion as "law" or whatever....three, alot of people are worried it would cause a snowball effect and set preceedents.

"Oh hey if we can regulate this....why not regulate that as well?...Then what about that?...Oh this too."

See....regulate one thing that's free speech and suddenly they might be able to regulate more and more and more....

@ Lightwarrior

So, convert the ESRB into a government organisation? Or allow them to act as a contractor for the government and then legally enforce it? Im not sure the legalities of that over in the US, over here the BBFC is technically a government organisation although it isn't (in my opinion) governed by the political situation.

I mean, I know you guys have different views on freedoms etc due to your constitution, all Im saying is it's been enforced over here since forever, and it works, y'know? Kids whom their parents still deem responsible can get hold of the games through their parents, and it's a lot harder for kids to get their hands on innappropriate material without parental consent...which seems in my opinion to be a significant possibility over in the US.

Of course, none of this soves the REAL problem of parents not taking an interest and monitoring what their kids are playing. Untill parents start paying attention and stop using videogames and TV to raise their kids for them, this issue won't go away politically.

So does this mean a back door could be found to ban games from adults here? :'(

This is actually how I came into GP thinking.

But, after a couple of years of hearing the ACTUAL excuses being used, the ACTUAL defenses being used, the LIES and DECEIT being used, to support such legislation, I have actually ended up going against such legislation.

As the judge says, the surface issue of regulation based on age is sound, if not filled with loopholes as already proven.

But the arguments that any individual, organization, and/or government entity is more equipped to dictate to individuals what is or is not appropriate for them and their children is another issue altogether.

Not to mention, as has been pointed out, that such regulation against one form of media, one genre (based on age) within that media, but not similarly placed against other media and other exposures that could be considered "harmful" to children, shows the inconsistant and broken nature of our legal system.

NW2K Software
Nightwng2000 NW2K Software Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as

Simplest and coolest truth:
if videogames are protected by the first amendment, any laws to stop their distribution are............... violating the first amendment.

how hard is that to understand?

As a Brit I struggle with all your amendment stuff I'm afraid.
Its probably impossibly hard for some glaringly obvious reason, I just dont see how they cant have an accepted committee (like the BBFC in UK) to give a rating to a game, and then enforce those ratings in shops via fines and such.
Then adults buy adult games, kids buy Pica pica or whatever, job done - wheres the nearest landfill to deposit JT.
You guys do have rated games and films over there dont ya ?

It's a bit of a stretch to interpret this as "at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors." This is taken from a casual conversation with no detailed review of the cases at hand. A slightly more careful look at the laws that have been struck down reveals them to be quite flawed in a number of ways.

For any of this legislation to be ruled constitutional, it would have to demonstrate that particularly violent games have no scientific, educational, or moral benefit to minors, which is a tough call when you lump six-year-olds in with seventeen-year-olds. Even the hand-eye coordination of some games could potentially count as "educational benefit," and plenty of seemingly amoral games could be construed as moral benefit if they can be taken as satire.

This legislation would also likely need to pass strict scrutiny, which would mean that it would have to demonstrate that violent video games do in fact harm children, the proposed legislation would in fact protect children from such games, and that less restrictive avenues have already been exhausted. This is a long shot still: Judge Kennelly in Illinois noted that most of the games to be restricted are being bought by parents already, and that even more accessible visual media (movies, music) were omitted from the law, suggesting (I'm paraphrasing) that the law was never even meant to do what it proposes. Plus, the research on video game violence is nowhere near conclusive enough to suggest that minors (as old as 17) are actually being "harmed."

Perhaps most pertinent, there are plenty of less restrictive avenues still available that would restrict children's access even more effectively, such as more widely publicized and carefully designed parental controls on consoles. How about letting parents lock out games based on content descriptors, rather than just based on rating?

The problem here is not just whether games deserve this treatment, but why games are being singled out among all media. The answer to that is not that games are more violent or more powerful in their effects, which are far from being demonstrated scientifically. The answer is that lawmakers still don't understand how games work, and many new media come under disproportionate scrutiny until people calm down. Let's not see this medium crippled by the institutional vestiges of moral panic the way we've seen with other media, or in other nations.

P.S. Oops ... obviously music isn't a "visual" medium. But you get the idea.

The issue isn't whether video games are protected by the First Amendment. They are. Even so, the government can regulate protected speech--but only if the law passes "strict scrutiny," which is the hardest constitutional test a law can get put through.

Basically, any content-based regulation of speech has to (1) serve a compelling state interest, (2) be necessary to serve that interest, and (3) be narrowly tailored to serve that interest. So the issue that would go to the Supreme Court is not whether video games are protected speech, but whether any restriction on distributing games with a certain type of content to minors does all of those three things.

There is also another constitutional problem with these sorts of laws that has nothing to do with the First Amendment. These laws restrict (and often criminalize) the sales of video games based on a ratings-system put forth by a private entity, the ESRB. This arguably violates various legal doctrines that prohibit the government from delegating its authority to private actors, especially laws that "punish" those who disobey.

@ Bedlambob -- Yes, we do have films rated. However, neither the MPAA Ratings system nor the ESRB has any governmental power. Nor should they be given any, since they're run by the private sector.

I don't know if the BBFC is government controlled or not, but here you need to be accountable for anything you do if you're going to have the force of law.

"The British Board of Film Classification is an independent, non-governmental body, which has classified cinema films since it was set up in 1912, and videos since the passing of the Video Recordings Act in 1984."

So it's independent, but not private sector.
Hope that clears it up.

I don't see much of a problem here. Basically what he suggests is simply enforcing what is already there when it comes to selling games to minors. It just makes it more strict. And he does agree that games are a form of protected speech; something which people like JT insist it is not.

Is there a country out there with free media and no christians? I think its time to move.

I would like to point out that games are a medium, like magazines and movies. Just as there are magazine and movies that can't be sold to a kid, there are games that can't be sold to a kid. However, I believe thos would be the AO titles, not rated M titles. If they try to push legislature that prohibits M rated games to be sold to minors, I expect the same law to prohibit R rated movies from being sold to those underage as well.

(there may already be a law on the books, I don't know).

My point is that games aren't just what is for sale in WalMart, they include an entire spectrum of interactive computer programs, and trust me, there are some that SHOULD be illegal for children to get, and I'm not talking Halo3.

"it would simply prevent minors from buying the games on their own"
...or retailers can keep do what they have been doing which is to have a STORE POLICY about not selling to minors.

You don't need to be Christian to want to legislate morality.

Sounds like the judge would want to implemenet something similar to the current British system.

I don't think he's singling vidjagames out either, so words shouldn't be put in his mouth.

Also, I'd like to add to my statement. Currently they like to whip out the AO rating to easily. If you don't want to rat the Saw series, each and every one of them, as Rated X, then you CAN'T rate Manhunt 2 as AO. Interactivity be damned, those movies were gross.

@ JQuilty ; thanks for the response, but in UK our BBFC isn't govenment regulated, but its ratings are legally enforced.

Video Recordings (DVDs, Videos, Games)
It is an offence to sell or hire these to a person who has not attained the age specified in the rating certificate which may be 12, 15 or 18.

Do Americans truly believe that to be 'unconstitutional'?
Surely 'Store Policy' only works if the stores uphold it, and when someones waving $50 in their face is probably a loaded question.

I really don't see any problem with a law forbidding the sale of M rated games to minors. Now I don't think such a law should make doing so a criminal offense. Still, as Justice Scalia pointed out- we have long had both legal precedent and cultural normative standards holding that it is perfectly reasonable for the governing bodies of a society to restrict minors' access to certain materials which have been deemed to be detrimental to their well being.

I think that such a law would most likely be very similiar to the prohibition on selling pornography to minors. Not because games are pornography but because we have the same concerns with minors' access to materials which may be harmful to them. I really think that a law like this is inevitable and would really be beneficial to the industry because it would shift blame away from the industry itself and on to retailers who defy the law and sell mature rated games to kids.

And as for the few people who think this is a free speech issue- it isn't. Nobody is restricting the right of the industry to produce whatever kind of games they want. Rather such a law would provide a penalty for minors purchasing M rated games and for retailers who knowingly sell such games to minors. There isn't any restriction of speech there.

The only problem I really have with this is that there's a double standard. DVD's are not regulated this way, so why is there a need for games to be? There has to be consistency, and I would hope that if Scalia were presented with this case he would do enough research to come to this conclusion.

Such a system would get abused so quickly.

This doesn't bother me considering minority dissenting opinions are VERY common with SCOTUS rulings...


I agree with the idea that such a law would be fair but only if it were applied to media without prejudice or favour and it is there where the problem arises. The 'evidence' that Video Games are detrimental to people's wellbeing is actually less confirmed than similar evidence regarding TV and Movies, and yet not one finger has been raised to implement legally enforced ratings for them. Whilst yes, I can understand the desire for ways to stop minors from accessing violent images etc, it is a constitutional issue, just not the Amendment you are thinking of. To create a law that affects the Video Game industry only with no supporting evidence to suggest that they require special sanctions over Movies or other forms of Media is discrimination against a particular form of speech.

As was mentioned earlier, in order for such a law to pass, it would have to go through an extremely thorough review, and I think unless the whole system is dealt with in one go, even if the Law doesn't butt against the First Amendment, it will, with the current 'evidence' crash head first into the 14th.
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