GWEN IFILL: The Supreme Court ended its term today with a pair of major decisions that turned on the constitutional right to free speech. By 7-2, they agreed to throw out a California statute that banned the sale and rental of violent video games to minors. Supporters of the law argued that the games allow children to simulate grotesque acts of violence.
But the video game industry said the games should be treated like any other form of entertainment. The court also struck down a provision of Arizona’s campaign finance system that provides extra money to publicly funded candidates when they face well-funded rivals.
Joining us now to discuss the court’s final rulings of the session is NewsHour regular Marcia Coyle of “The National Law Journal.”
Marcia, starting with this California statute that was tossed out, give us the genesis of this.
MARCIA COYLE, “The National Law Journal”: OK.
California passed the law 2005 that prohibited the sale or rental of violent video games to anyone under the age of 18. And a violent video game, they defined, was one that gave the player the option of killing, maiming, dismembering, or sexually assaulting a human image.
It also lacked — would lack any serious literacy, artistic, political, or scientific value and would appeal to a minor’s morbid or deviant interests.
GWEN IFILL: Well, how do all of those things — that sounds pretty awful.
GWEN IFILL: How does killing, maiming, dismembering, and sexual assault fit under the rubric of free speech protection?
MARCIA COYLE: Justice Scalia wrote the opinion for a 7-2 majority today.
And he said, basically, California was asking the court to create a new category of unprotected speech. The court has found unprotected speech in only a handful of cases, things like obscenity, fighting words. He said that there was no long history or tradition in this country of prescribing minors’ access to violent content.
And he gave as an example Grimm’s fairy tales, which he said were grim indeed. And he said, for example, Cinderella’s three evil step-sisters had their eyes plucked out by doves. Hansel and Gretel got rid of their captor by baking her in an oven.
GWEN IFILL: But the reader of those books didn’t actually pick up a virtual gun and pluck out the eyes of Cinderella’s sisters. So — so, you — what’s in these games that we’re talking about. They’re very — probably, anybody with a teenager at home is familiar with them.
MARCIA COYLE: Right. Right.
What’s in the — exactly in the games?
GWEN IFILL: Yes. I mean, what, shooting, running blood?
MARCIA COYLE: There is everything. There’s shooting. There’s killing. There’s rape. There’s urinating on women or children.
The next step for Justice Scalia, though, was to say, OK, California, you have this law. In order to pass scrutiny under the First Amendment, there has to be a compelling reason for the law. And the law also has to be narrowly drawn to achieve that interest.
California argued that there were studies showing that you could — you could link the playing of these violent video games to increased aggression in minors. Justice Scalia said the studies weren’t sufficient, that they were conflicting. They were inconclusive.
So there was — the compelling interest wasn’t there. He also said it wasn’t narrowly drawn. For example, it was underinclusive. It only singled out violent video games, not violent books, not violent movies. And it was overinclusive. There are actually some minors whose parents don’t care if their children have these violent video games. But they were swept in to the prohibition as well.
GWEN IFILL: So, there — it was 7-2. So there were two dissents.
MARCIA COYLE: Yes.
GWEN IFILL: Who dissented and why?
MARCIA COYLE: The real dissents were by Justice Thomas and Justice Breyer.
Justice Thomas has long believed that the drafters of the First Amendment never envisioned minors having First Amendment rights or access to speech except through parents or guardians. That ended it for him. This law was constitutional.
Justice Breyer felt that there was sufficient evidence here that the court should defer to the legislature’s judgment in California, that this law should be upheld. He asked, for example, does it make sense, under the court’s precedents, that you can prohibit the sale of a magazine showing nude women to a 13-year-old boy, and yet you’re going to protect the sale of a video game in which that same 13-year-old, acting virtually, bind, gag and kill a woman?
GWEN IFILL: Well, let’s talk for a moment about this other case, because this was in Arizona. And it was a case where Arizona’s state government tried to level the playing field when it came to campaign financing.
MARCIA COYLE: Arizona had what is known as a matching-fund public financing system.
It works this way. If you opt into the public financing system, the state would give you a set amount of money at the beginning of either the general or primary election. If your opponent who is privately financed exceeded that grant to you, you would qualify for matching funds, nearly a dollar-for-dollar match.
Also, if independent expenditure groups spent in favor of your opponent, your privately financed opponent, or just ran commercials or ads against you, there also was the matching funds.
The matching funds were capped, though, at a certain amount. The privately financed candidate could continue to raise money, however.
GWEN IFILL: So, it tried to even the playing field, but it wasn’t necessarily the final result. But that wasn’t what the — the problem the court had.
MARCIA COYLE: No. In fact, we will get to this, but Arizona denied that it was trying to level the playing field here.
GWEN IFILL: Ah. Ah.
MARCIA COYLE: Chief Justice Roberts wrote for a 5-4 majority. And he said that this system, this matching funds in particular, this matching-fund trigger, put a substantial burden on the speech of the privately funded candidate and independent expenditure groups.
They knew that, if they used speech, spoke, spent above a certain amount of money, their opponent would get matching funds. And this, he said, was — was prohibited under the First Amendment. He rejected Arizona’s argument that this law was justified as Arizona’s voters’ attempt to combat corruption.
He said this was an attempt to level the playing field. And the court has said many times that’s forbidden under the First Amendment.
GWEN IFILL: Why — why did they say this wasn’t leveling the playing field? What was Arizona’s pushback on that?
MARCIA COYLE: Arizona said that the law was passed back in 1998 by a voter referendum right after a major scandal in Arizona in which state lawmakers were found to have taken bribes in exchange for their votes on certain issues. So, it was intended to combat corruption.
GWEN IFILL: Justice Sotomayor read part of her dissent, kind of unusual, from the bench. And it was pretty sharp.
MARCIA COYLE: It actually was Justice Kagan.
GWEN IFILL: Justice Kagan. Sorry.
MARCIA COYLE: And you’re right.
And she did read part of it from the bench which is usually a signal that the dissenters feel very strongly about this. She said that this matching funds system was a subsidy of speech, not a restriction on anyone’s speech, and it actually resulted in more speech, not less speech. And that’s why — and that is what the First Amendment encourages, especially when it comes to political speech, more speech.
GWEN IFILL: She is the one who said, this really was a topsy-turvy interpretation, that…
MARCIA COYLE: Of the First Amendment.
GWEN IFILL: And that was Justice Kagan.
MARCIA COYLE: Yes.
GWEN IFILL: Thanks for catching me on that, as always.
And thank you again, Marcia.
MARCIA COYLE: My pleasure.