The day Justice Scalia helped save video games

how scalia saved video games justice
U.S. Mission Geneva
The unexpected death of Supreme Court Justice Antonin Scalia on Saturday created shock waves, throwing a politically charged replacement battle on top of what is already one of the most fraught presidential primary races in living memory. An incisive legal scholar and constitutional originalist, he served on the country’s highest court for nearly three decades, leaving behind a divisive legacy as one of the most conservative voices in the modern Supreme Court.

Scalia courted no shortage of controversy, particularly for opinions on homosexuality that many view as regressive, but one count of unexpected praise came this past weekend in a statement from the Entertainment Software Association, noting his majority opinion in a 2011 case that enshrined video games under First Amendment protection as a form of free expression:

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 consumer everywhere.

“Literature draws the reader into the story, makes him identify with the characters …. to experience their joys and sufferings.”

In 2005 California passed a law that restricted the sale of violent video games to minors as it would cigarettes or alcohol. It was immediately challenged by the Video Software Dealers Association and blocked by a District Court injunction ruling it unconstitutional. Then-governor Arnold Schwarzenegger (ironically famous for starring in violent, mass market films) vowed to fight the ruling, bringing the case to the 9th District Court of Appeals, which upheld the District Court’s ruling. In 2010 it moved up to the Supreme Court, and in a 7-2 decision for Brown vs. Entertainment Merchants Association, Scalia wrote the majority opinion that upheld the lower courts’ rulings. In his opinion, Scalia argued that, as an expressive medium, games should fall under the same protections that the First Amendment grants to other types of creative speech:

Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

The state of California argued that video games deserved special consideration as an interactive medium, and thus somehow more likely to provoke violence in impressionable children that play them. The argument about the potential dangers of violent video games went back to the 90s, when the rapidly-increasing graphical fidelity of ultra-violent video games like Mortal Kombat provoked outrage among parents and conservative activists. That initial outcry led to the creation of the ESRB ratings system, but the debate raged on.

Scalia’s opinion pointed out that decades of research studies looking for a causal link between violent video games and real-world behavior “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).” Writing more broadly, he argued that the interactive nature of video games was not fundamentally different from the ways that older narrative media invited audience investment: “The 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.”

Although the 2011 ruling set a powerful legal precedent for the video game industry, the debate about the influence of games and gaming culture has continued, particularly now in the context of GamerGate and the toxic discourse bred by online anonymity. On the other hand, the U.S. Government has started to change its tune, with the White House recently signaling its intent to move the discussion from games’ negative effects to their possible positive effects for social change and as a rapidly growing industry sector.

Scalia’s legacy is divisive to say the least, but on this one issue he managed to eloquently voice the progressive side of history and play an important role in ensuring that video games are able to flourish and evolve as other forms of media did before them.

Emerging Tech

Awesome Tech You Can’t Buy Yet: camera with A.I. director, robot arm assistant

Check out our roundup of the best new crowdfunding projects and product announcements that hit the web this week. You may not be able to buy this stuff yet, but it sure is fun to gawk!
Movies & TV

'Prime'-time TV: Here are the best shows on Amazon Prime right now

There's more to Amazon Prime than free two-day shipping, including access to a number of phenomenal shows at no extra cost. To make the sifting easier, here are our favorite shows currently streaming on Amazon Prime.
Business

Apple banned from distributing some iPhone models in Germany

Apple is following the FTC's lead and has sued Qualcomm for a massive $1 billion in the U.S., $145 million in China, and also in the U.K., claiming the company charged onerous royalties for its patented tech.
Web

Switch up your Reddit routine with these interesting, inspiring, and zany subs

So you've just joined the wonderful world of Reddit and want to explore it. With so many subreddits, however, navigating the "front page of the internet" can be daunting. Here are some of the best subreddits to get you started.
Mobile

Biometric phone unlocks can’t be forced by feds, says U.S. judge

Fingerprint and face unlocks used to not be protected by the Fifth Amendment, but that may soon change. A judge in California has ruled biometric unlocking methods of all kinds are protected in the same way as passcodes.
Gaming

Xbox app lets you access your console while away from home. Here's how

Microsoft's Xbox allows you to access your profile information and launch media content directly from your mobile device. Check out our quick guide on how to connect your smartphone to an Xbox One.
Gaming

Goodbye, Machinima: YouTube gaming channel pulls the plug after 13 years

Machinima, a YouTube gaming channel that was launched in 2006, has suddenly shut down, with all of its videos set to private. The #RIPMachinima hashtag is now making the rounds in social media to reminisce about the channel's content.
Gaming

These are the best indie games you can get on PC right now

Though many indie games now come to consoles as well, there's still a much larger selection on PC. With that in mind, we've created a list of the best indie games for PC, with an emphasis on games that are only available on PC.
Gaming

This list of PlayStation 4 exclusives puts its competitors to shame

The PlayStation 4's game library and incredible selection of exclusive games could make anyone with an Xbox One or Nintendo Switch think twice. Here's our list of the latest and greatest PS4 exclusives.
Gaming

Overkill’s ‘The Walking Dead’ delayed indefinitely for PlayStation 4, Xbox One

Overkill's The Walking Dead for the PlayStation 4 and Xbox One have been postponed without a new release date. The co-op zombie shooter suffered massive delays, then received lukewarm reviews once it launched for the PC through Steam.
Gaming

The hottest Nintendo Switch games you can get right now

The Nintendo Switch's lineup started off small, but games have steadily released as the console continues through its second year. Here are the best Nintendo Switch games available now.
Gaming

How you can give your PS4 a fresh start with a factory reset

Learn the many ways you can factory reset your PS4. From reverting your settings to factory to doing a full wipe and reinstalling the latest PlayStation firmware, we cover it all here, step by step.
Gaming

Can't stand keyboard gaming on PC? Here's how to use a PS3 controller instead

Properly connecting a PlayStation 3 Controller to a PC is no easy task, especially when you opt for third-party peripherals. Thankfully, our guide will help you through the process.
Product Review

‘Resident Evil 2' is a terrifying new virus you'll want to catch

Resident Evil 2 brings the Raccoon City incident to a new generation of players, acting both as a nostalgic throwback and a thoroughly modern horror game with some of the best visuals of the generation.