Antonin Scalia's Landmark Defence Of Violent Video Games

Antonin Scalia's Landmark Defence Of Violent Video Games

Photo: AP Images

Supreme Court Justice Antonin Scalia, who unexpectedly died at the age of 79 today, will be remembered as one of the most polarising figures in American government, famous, or perhaps infamous, for his strong conservative stances on abortion, campaign finance, and gay marriage. On June 27, 2011, he also delivered an opinion worthy of unanimous appreciation from those who love video games.

Scalia wrote on behalf of the majority, in a 7-2 ruling against the state of California's attempt to criminalise the sale of violent video games to minors. California was attempting to treat violent games like cigarettes and alcohol, arguing that violent video games, unlike other forms of violent entertainment, could cause changes in children's minds and actions.

Scalia and six other justices would have none of it and instead affirmed that video games, like movies, books, music and all other artforms are speech and are protected by the First Amendment to the Constitution of the United States.

Excerpts from Scalia's majority opinion:

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech . . . do not vary" with a new and different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503.


California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.


California claims that video games present special problems because they are "interactive," in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. "[T]he 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's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies 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). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

Even taking for granted Dr. Anderson's conclusions that violent video games produce some effect on children's feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the "effect sizes" of children's exposure to violent video games are "about the same" as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated "E" (appropriate for all ages), or even when they "vie[w] a picture of a gun."

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it.


California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. ... We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a "well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.

Really, though, nothing had more punch than the summary that preceded Scalia's opinion. It began where it might as well have ended:

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech . . . do not vary" with a new and different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503.

You can read Scalia's full opinion and the court's two dissenting ones below:

Brown vs. Entertainment Merchants Assn.


    Well goddamn.... someone finally stood up and KO punched a stupid broken system with nothing but logic. Well done man!!!

      It's just too bad about all the other decisions the guy made.

      He was also one of the judges who supported the 5:4 majority in the Citizens United case that opened the way for SuperPACs and unlimited corporate campaign financing in elections in the US.

        It's not too bad. As an originalist, he was incredibly consistent in his interpretation of the US Constitution and his judgements reflected this. He really was a brilliant judicial mind, and along with Ruth Bader Ginsburg, a real pillar of the Supreme Court.

        If you agree with him on some things and disagree on others, then it is much more likely that your own views are ideologically inconsistent . There is nothing wrong with that per se (eg; most major political parties would be in this group alongside you), but it does mean that it would be very difficult to apply your views to a judicial framework.

        in the specific instance on unlimited corporate campaign financing, I suspect you would be surprised how much money actually goes to the Democrats. (Scalia was nominated by Reagan, a republican). In the 2014 election cycle for instance, 8 of the top 10 organization contributors heavily favoured the Democrats, with one evenly split, and number ten on the list favouring the Republicans. Source:

      Yeah, but unfortunately most of his other decisions are truly contemptible.

        Indeed but, you take what you can get in this case, don't shoot your foot just because you don't like what the hand is doing.

    I can't seem to understand the timiing, I had thought he/this was more of an issue in the 90s.

    But as it was actually quite recent, I'm less impressed. Games were already legitimised before this.

    Akin to hearing about the US finally work out the proper use for Vegemite.

      Akin to hearing about the US finally work out the proper use for Vegemite.
      Well, to be fair, they haven't been as exposed to vegemite as we have. It makes sense that they would take some time to realize that the proper treatment for vegemite is quarantine and biowaste disposal.

      Apparently California didn't get that memo because they were trying to outlaw violent video games as a banned "substance" in recent years, hence Scalia firmly reprimanding them for ignoring the past few decades of research.

    But that's just it. Despite all the evidence, despite all the results of countless experiments, majority of people who don't play video games will assume it makes kids violent.
    I'll admit, GTAV is the prime example of a game that should not be played by anyone under the age of 14 (maybe even 16)...I mean Trevors introduction to the game, holy hell, that cut-scene alone is deep in the R rated genre. But, if a 12 year old did (and many have) play it and see that moment, I highly doubt they're going to start banging bikers girlfriends, cooking meth and stomping faces into the gutter shouting C**T C**T C**T.

    Last edited 15/02/16 10:16 am

      GTA V is rated R18+ here. It's literally restricted to adults and shouldn't be played by children. Letting a child play an R18+ game is the same as letting them watch hardcore porn.

        Legally speaking, yes, but games are held to a higher standard than movies or (especially) books - consider that Equus (which incorporates sexually related violence) has been a required NSW HSC text in the past. It takes VERY strong content to give a movie an R rating; basically it's limited to raw sex or rape. The scientific studies don't really support that distinction, but it's held on because the people making the laws still think games are for kids.

        Recall the case a few years ago where Atelier Totori (a pretty tame RPG) was refused classification because it included a swimsuit competition. That was reversed later, but comparing it to the R-rated movies out there there's a very definite disconnect in the standards being applied.

        I'm not suggesting that GTA5 should be played by kids (far from it - one of the problems with classification in AU is how often the ratings are ignored) but saying that playing an R18 game is "the same" as watching porn ignores the entirely different standards applied when setting the ratings.

          alien vs predator (2010) was an even better example, it was RCed yet had the same amount high impact violence as Aliens and the Predator movies that were moved down from being R18 to only M15 and MA15

          I also remember a weird issue with The Rock, atr the movies it was MA15, yet years later it was reclassified as R18 but it wasnt a directors cut or anything like that

        That it is, and it deserves that rating for a few particular moments. What I was getting at was the fact kids do play it regardless of rating and they don't seem to be cooking meth and having massive heists as far as I'm violent video games aren't making kids (or adults) more violent.

        I just wish parents would treat video game ratings in the same respect as movie ratings...instead of raising a petition to have it removed from the shelves.

          I agree, violent games do not induce a violent reaction. I've played them my whole life, from GTA 2 right through Halo, CoD 4, Postal and whatever else I felt like playing. I'd like to think I'm a fairly normal 27yr old now.

          That said, the scientific studies also show no correlation between violent games and violent behavior so it's a bit of a moot point anyway.

          As for the ratings I might let my kids play an R18+ game if they were something like 16/17yrs old and I'd played it through myself first to see why it was given that rating. The point is that I'd give the rating the respect it deserves first and not just ignore it. Parents seem to go "oh, little johnny is playing GTA V so it must be ok for my kid too" either that or they figure the kid played number 4 so 5 is fine...or they just ignore ratings entirely.

    Oh, well, that totally makes up for all of his other foul opinions.

    so, the upshot of this is that there should be no classification of media in the US? Therefore anyone at any age can purchase/view/play R18+ (US equivalent media)?


      Not to pick on you specifically, but this is why cherry-picking portions of a judgment is a bad idea; it can leave people like yourself with the entirely wrong impression. Media reporting on legal matters drives me up the wall.

      Other media (e.g. pornography) and reasons why it can be restricted are covered in the full reasons of the Court.

    To correct a few statements here, as many people are outrigjt wrong.

    1) the R rating for media is legally different to hardcore porn. There are no laws which make it illegal for a minor to play an R rated game or movie at home. Look at the legislation.

    2) No type of media has been proven by science to be "harmful" to anyone in any capacity. Kids included. It is an old age assumption perpetuated by a technophobic generation of baby boomers. Science in fact has continually rejected the notion of "causation" in media.

    3) Thus legal restrictions are the result of nothing more than baseless assumptions, rather than an evidence based approach.

    4) A persons own subjective morality is NOT sufficient reason to legislate ANYTHING. It is up to you as an individual to avoid content you personally dislike. It is not your responsibility to dicate what others see, read, hear and play. Excluding child porn, there is simply no reason to place legal restrictions on entertainment. Raise your own kids. Video games are not alcohol or tobacco. They're purely fictional entetainment.

    Australia has a very long way to go before it begins to truly respect individual freedoms.

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