Supreme Court Justice: Video Game Laws Might Be Constitutional

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…

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