Yesterday, the Supreme Court struck down a California law that bans the sale of violent video games to children. It was an atypical majority alignment, with a lot of First Amendment muscle.
The core of the decision is that video games are a form of protected speech (vs. behavior), and California's law therefore had to survive strict scrutiny in order to be upheld; under the Court's assessment, it failed that test. I support the Court's reluctance to create new classes of unprotected speech, but in my view we should go a step further and ask some basic questions about "obscenity", which is afforded no First Amendment protection at all.
California essentially attempted to characterize the bloodiest video games as a relative of obscenity, which should only trigger an easy rational scrutiny test for the government. But the Court pushed back, ruling that such an approach doesn't merely refine the contours of a given unprotected class of speech; it creates a new category altogether, thus weakening the First Amendment.
This makes good sense, but I think the logic of it pushes the question further: if bloody and violent interactive games are First Amendment "speech", why isn't obscene expression?
Scalia writes about the underinclusive nature of California's law -- in that video games are being singled out amid many (arguably) harmful forms of media. It seems to me that in a broader sense, the same reasoning applies to obscenity. With so many offensive forms of expression out there, why is obscenity singled out and given no First Amendment protection at all?
A convincing argument can be made that exposure to violence -- murder, rape, ethnic cleansing -- is more harmful to children and people generally than content that appeals to their "prurient interest." Yet the former comes with First Amendment protection, while the latter is lumped in with incitement or fighting words (other unprotected categories) -- all because a bunch of old white guys on the Supreme Court made an arbitrary decision about it many years ago. And in identifying obscenity, the best Justice Stewart could ever say is: it's hard to define, "but I know it when I see it..." That's hardly a concrete standard.
That bigger question wasn't presented in the California case; however, Scalia makes a passing effort to defend obscenity bans, writing that there's an American tradition of upholding certain sexual mores. But "tradition" is among the weakest of arguments, imo -- after all, it was once our "tradition" to maintain a racially segregated society under 14th Amendment "equality."
Don't get me wrong, I think the Court got yesterday's ruling right. My point is that it should go further when given the opportunity and throw out its obscenity doctrine. There's just not enough space between it and other forms of speech (brutal violence, for example) to justify radically different treatment. And within this new model, there would still be room for narrowly crafted laws to protect children.
Oops. Better go get my kids off the X-Box. :)