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Just how conservative or pro-business the Roberts Court is continues to generate debate. But on one subject, the trend line is undeniable: a strong majority favors classic First Amendment protection for even the most objectionable speech. The Court capped its 2010-11 term Monday with the latest landmark on that path: Brown v. Entertainment Merchants Association, striking down in no uncertain terms a 2005 California law barring the sale of violent video games to minors. It follows decisions within the last 14 months on laws restricting depictions of animal cruelty and on virulent protests at military funerals. No matter how vile video games can be, Justice Antonin Scalia said for a 7-2 majority, “disgust is not a valid basis for restricting expression.” Scalia recited the history of children’s literature from Grimm’s Fairy Tales – “grim indeed” – to Hansel and Gretel cooking their captor, and the savage murder in Lord of the Flies. Proclaiming that minors have a “significant degree” of First Amendment protection, Justice Antonin Scalia said from the bench, “Government has no free-floating power to restrict the ideas to which they may be exposed.” Scalia announced the decision on its final sitting until October 3. It also issued an important campaign finance decision, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett – continuing in another First Amendment trend of striking down campaign reform laws – and two other decisions on state court jurisdiction over foreign corporations. It also added 11 new cases to its fall docket, including one on broadcast indecency and another on the Fourth Amendment implications of police tracking of suspects with GPS devices. First Amendment advocates, who had grown fearful of defeat in the video game case because of the Court’s long delay in reaching a decision – it was argued last Nov. 2 – celebrated the Court’s decision. “This is a Court that takes an expansive view of the First Amendment. It is particularly sensitive to any claim that the government is using its power to censor unpopular speakers or unpopular speech,” said American Civil Liberties Union legal director Steve Shapiro. Added Andrew Schwartzman of the Media Access Project, “The sound you hear is a collective sigh of relief from the arts community… An adverse ruling would have encouraged legislatures to restrict free expression in music, on television, and on the Internet.” The ruling also added video games to the First Amendment pantheon, as it has with other new media including the Internet. “We are gratified that our position that the law violates the First Amendment’s guarantee of freedom of expression has been vindicated, and there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment,” said Bo Anderson, president of the victorious Entertainment Merchants Association. But supporters of the law criticized the decision, pledging to find other ways to protect children from violent video games. “This is a sanity issue, not a censorship issue. If parents decide a violent game is OK for their kid, that’s one thing, but millions of kids are not able to judge the impact of ultra-violence on their own,” said James Steyer of Common Sense Media. Two justices in the majority, Justice Samuel Alito Jr. and Chief Justice John Roberts Jr., did signal in a concurrence that they could support a more carefully written statute that clearly defines what kinds of videos are banned and differentiates between older and younger minors. “I would not squelch legislative efforts to deal with what is perceived to be a significant and developing social problem,” wrote Alito. Justices Clarence Thomas and Stephen Breyer wrote separate dissents, with Thomas repeating his long-held view that minors have limited rights under the First Amendment. Breyer said the California law imposes “no more than a modest restriction on expression” and is valid, given the state’s compelling interest in protecting children. But Scalia’s muscular majority opinion dismissed those objections, based largely in the United States v. Stevens decision of last term, which struck down a law banning animal “crush” videos. That precedent, Scalia said, does not permit government to restrict speech just because of its social costs. Scalia also said the social science evidence and research offered to justify the law had shown only “small and indistinguishable” effects on children compared to other media children are exposed to, including Bugs Bunny and Road Runner cartoons. Scalia had particularly sharp words for Alito for his description of violent video games that allow players to recreate the Columbine High School or Virginia Tech shootings or the John F. Kennedy assassination. “Justice Alito recounts all those disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression,’ Scalia wrote. The ruling upheld a decision of the U.S. Court of Appeals for the 9th Circuit, a rarity for the high court. The video game decision was the main attraction of the final session of the Court’s term. It was one of four cases the Court had not yet decided. Veteran Supreme Court advocate Paul Smith of Jenner & Block, who argued against the California statute, was in the lawyers’ gallery, waiting anxiously. Justices Ruth Bader Ginsburg and Anthony Kennedy started off the session by reading from their rulings, both business cases. Justices announce their decisions in the order of reverse seniority, which meant that after their readings. One of the two most senior justices, Scalia or Chief Justice John Roberts Jr., would be the author of the video game case. (As chief justice, Roberts is regarded as having the most seniority, no matter how long he has been on the Court.) That was a good sign for First Amendment advocates. Scalia had been sharply critical of the California video game law during oral argument, and Roberts was the author of both the animal video case and Snyder v. Phelps on protests at military funerals. When Scalia began reading, Smith allowed himself to relax. For him, good news was coming. Tony Mauro can be contacted at [email protected].

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