Scalia correctly identified that games -- like movies, music and literature -- are vehicles that communicate ideas.
For perhaps the first time in the history of his tenure on the U.S. Supreme Court, I find myself agreeing with... Justice Antonin Scalia.
Big A, co-founder of the Michelle Bachmann School of U.S. Constitution Cliff's Notes and the guy who never allowed a digital voice recorder within twenty yards of his esteemed personage, penned the majority opinion in Brown v. EMA, yet another lawsuit that sought to restrict the right of videogame retailers, this time in California, to rent or sell mature-rated videogames to anyone under the age of 18. The Brown ruling (PDF) effectively strikes down the latest attempt by the anti-violent videogame crowd to control and quash videogame content. Good news -- it wasn't even close. The majority ruled 7-2, with Breyer and Thomas dissenting.
At first glance, you can almost see where its supporters found logic and sense. After all, nobody really wants to see a situation where a 12-year-old can stroll into the local GameStop, plunk down forty bucks and walk off with a copy of Dead Space 2 or L.A. Noire.
But Brown was a classic case of trying to kill a fly with a sledgehammer. It isn't the government that ought to be shielding fifth graders from engaging in unrestricted sessions of Call of Duty: Black Ops and Duke Nukem Forever -- it's parents. The problem, of course, is that far too many refuse to take even the basic time and effort to educate themselves about what's out there and what their kids are playing.
Kid wants to garrote and stab some unscrupulous cardinals in Assassin's Creed Brothehood? That one's rated-T, right? Have fun in the basement for the next two hours while I update my Facebook page, kids!
In this case, penalizing retailers would have been just another name for censorship. To avoid the possibility of expensive fines and lawsuits, many retailers would simply have flipped to the easy difficulty level, refusing to stock and sell M-rated games at all. And if games aren't selling, publishers aren't making them. Bye-bye, Bioshock Infinite. See ya later, Darksiders 2. Anyone seen my copy of Littlest Pet Shop?
Better still, the Brown v. EMA ruling also puts to rest, at least for the time being, the misguided notion that videogames are somehow a different form of entertainment than movies, music and literature, and therefore not qualified as a protected form of speech. They may be less easy to grasp and understand than printed words on a page, but Scalia correctly identified that games -- like movies, music and literature -- are vehicles that communicate ideas. We may not always like or respect the ideas, but government has no right to restrict them.
In debunking that loopy logic, Justice Scalia went all English major, wisely citing Dante's Inferno and Homer's Iliad as blood-and sex-soaked works of literature we wouldn't dream of restricting. (At least not yet, or north of Alabama.) Minors who score their GEDs are routinely exposed to this sort of horrifically subversive material, and instead of calling them deviants, we call them refined and educated. And rightly so.
We live in a society veritably drowning in choice, and the best choices are the ones made after all the facts are gathered and considered, including which games parents let their kids buy, rent and play. Just like there are shades of R-rated movies and lurid fiction, there are games that use violence and gore in thought-provoking and even satirical ways.
If parents were more responsible about managing what forms of entertainment are appropriate for their kids -- including and especially videogames -- Antonin and the gang wouldn't have to keep shooting this one down.