President Donald Trump’s recent suggestion that violent video games may need regulation in response to the recent school shooting in Florida would likely face First Amendment challenges based on a 2011 U.S. Supreme Court decision.
But at least one court watcher told Bloomberg Law the Supreme Court would likely reverse the decision that struck down California’s regulation of violent video games if given the opportunity.
Trump recently met with video game executives and “acknowledged some studies have indicated there is a correlation between video game violence and real violence,” according to a statement from the White House.
The Supreme Court ruled in the 2011 case that the California law restricting sales of violent video games to minors violated the right to free speech, in Brown v. Entm’t Merchs. Ass’n. The decision was authored by the late Justice Antonin Scalia.
Attempting to regulate video games “would run afoul of relatively recent Supreme Court precedent,” Roy Gutterman, a law professor at Syracuse University and director of the Tully Center for Free Speech, told Bloomberg Law by email.
But there’s reason to believe that at least one of the five justices who joined the majority in Brown would vote differently if presented with a similar case, Andy Schlafly told Bloomberg Law by telephone. Schlafly is a conservative attorney who filed an amicus brief supporting California in Brown on behalf of the Eagle Forum Education & Legal Defense Fund, a conservative organization.
Justice Elena Kagan, in particular, has expressed doubt about her vote with the majority in Brown.
Further, a recent oral argument suggested that Kagan and Justices Ruth Bader Ginsburg and Sonia Sotomayor would uphold regulation of gambling, using logic that could be used to uphold video game regulation, in Murphy v. Nat’l Collegiate Athletic Ass’n, Schlafly said.
A decision is expected in Murphy by the end of June.
Justice Anthony M. Kennedy is the only justice from the Brown majority who would likely vote the same way today, Schlafly said.
A concurrence by Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr., didn’t sign on to the court’s First Amendment reasoning in Brown.
Alito and Roberts said they would have invalidated the California video game regulation as being too vague, in violation of due process.
But they declined to address First Amendment implications and said there were reasons to suspect that violent video games could affect minors differently than books or movies.
Though Kagan voted with the majority, she was “all over the map” in trying to decide how to vote in Brown, the justice said at Princeton University in 2014.
Kagan said she doesn’t make “snap decisions,” but she’s also “not usually an agonizer.”
But Brown was the one decision “where I kind of think” that “I just don’t know if that’s right,” she said.
Schlafly pointed to those remarks and the Murphy argument as evidence that Brown will be reversed “as soon as there’s a challenge to it.”
Kagan, Ginsburg and Sotomayor—all of whom voted with the Brown majority—seemed “very much against opening the door to sports gambling” at the Murphy argument, he said.
There’s a conceptual similarity between gambling regulation and video game regulation because both involve the protection of children from addictive activities, Schlafly said.
He suggested a ruling in Murphy could therefore provide a path to revisiting Brown.
Another courtwatcher said a reversal of Brown is less likely, but that developments in neuroscience could change the court’s thinking.
Brown was based on science failing to show that there was a need to limit children’s access to violent videogames, Kevin W. Saunders, a professor at Michigan State law school, East Lansing, Mich., told Bloomberg Law by telephone. Saunders filed an amicus brief supporting California on behalf of Common Sense Media in Brown.
Saunders criticized the court for rejecting existing scientific evidence at the possible cost of “generations of children who will suffer psychological and neurological damage and perhaps be the victims of videogame-induced violence,” in a 2013 law review article.
Though advocates of regulation can “hold out hope” for more scientific evidence, it’s unlikely that enough evidence will have surfaced since Brown to make a legal difference in the near future, Saunders said.
“I am not aware of any new social science since the court ruled on the matter,” Gutterman, who wrote in support of Brown, said.
Staying Within Brown
Brown would prevent most regulation of video game sales because the statute it invalidated was “relatively mild,” Ruthann Robson, a law professor at City University of New York law school, who has written about the decision, told Bloomberg Law by email.
A new law would likely have to be “very different from” that in Brown to withstand a First Amendment challenge, she said.
But some disclosure requirements wouldn’t be foreclosed by that decision, Schlafly said.
For example, a regulation could require that video games indicate on the screen the cumulative amount of time that a game has been played, he said.
That would help parents know whether their child had become too addicted, he said. Arguments about the addictive nature of gambling apply “perfectly well to violent video games.”
Another option would be to require video game companies to provide trailers depicting the most violent moments of their games, so that parents could be aware of them, he said.
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