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Video Game Industry Mourns the Loss of a Friend in Justice Scalia

Justice Scalia wrote the majority opinion for a key 2011 ruling establishing freedom of expression for video games.
February 14, 2016, 5:00pm
Image: Stephen Masker/Flickr

As the Entertainment Software Association reminded us in a statement last night, the video game industry lost a friend when U.S. Supreme Court Justice Antonin Scalia died yesterday at a resort in West Texas. Scalia was famed for saying things like same-sex marriage was a "threat to American democracy" and that the other justices' opinions were full of "interpretive jiggery-pokery," but he was also the author of the important 2011 decision that established video games as worthy of protection under the First Amendment. In full, the statement from the organization that lobbies for the games industry and puts on the annual E3 show said:

"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 consumers everywhere."

The case in question was Brown vs. Entertainment Merchants Association, which tackled a 2005 California law that punished merchants who sold violent video games to minors and required publishers to label games beyond the usual ESRB warnings. The law was based on the conviction that violent video games cause "psychological or neurological harm to minors" who play them. California thus wanted to treat video games as though they were tobacco or pornography.

Signed by Governor Arnold Schwarzenegger, the law leaned heavily on the three-part Miller Test from 1973, the U.S. Supreme Court's test for determining whether speech or expression can be labeled obscene. The medium under fire needs to meet all three criteria, and the law especially stumbled on the part focusing on whether "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The Supreme Court ruled against the law with an impressive 7-2 majority, and in the process established that video games warrant the same freedom of expression enjoyed by artistic forms like books or movies. Scalia's written opinion demonstrated there was no "longstanding tradition in this country of specially restricting children's access to violence," and it emphasized the absurdity of the law when applied to depictions elsewhere.

"Grimm's Fairy Tales, for example, are grim indeed," he wrote, showing that the written versions of the tales describe the eyes of Cinderella's stepsisters getting pecked out by doves. He pointed out that extreme violence also appears in many of the works of literature on high school reading lists, including The Odyssey, in which "Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake," and The Lord of the Flies, in which "a schoolboy called Piggy is savagely murdered by other children."

Scalia, who was 79, was appointed to the court by President Ronald Reagan in 1986.