Video Games Protected by the First Amendment
California’s effort to prevent the sale of violent video games to minors produced some of the most amusing oral arguments at the Supreme Court we’ve ever seen, with Justice Samuel Alito poking fun at the originalism of Justice Antonin Scalia by saying, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
Whether he enjoyed them or not, the implication of Scalia’s majority ruling in Schwarzenegger v. Entertainment Merchants Association is that he would have thought of them as being protected by the First Amendment. The EMA was dealt a substantial assist by the American cultural distaste for explicit sexuality as opposed to explicit violence, a preference enshrined in obscenity law. California tried to argue that the games in question were obscene and thus subject to regulation, but Scalia noted that “the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct[.]” According to the majority opinion, the First Amendment allows the government to regulate depictions of sexytime, not the sublime feeling of WTFPwning some poor n00b over Xbox Live.
