A Tale of Two Breyers

So, the video game case came down today, Brown v. EMA. First off, a tip of the hat to SCOTUS for A) coming out the right way and declaring California's violent video games for minors ban unconstitutional and B) reaching the actual merits, rather than settling on the fairly obvious vagueness concerns. But the 7 - 2 still leaves me a little puzzled, mainly for Justice Breyer's dissent.

Note: Justice Thomas was the other dissenter. While I don't agree with his minors-have-no-speech-rights theory, at least it's consistent with Morse. Let's save the scary implications of that position for another day.

Justice Breyer's dissent forced me to don a strange expression, a mixture of confusion and embarrassment (a look I normally reserve for public moments of gastric distress). As I was reading Justice Breyer's defense of the California video game law, I was waiting to read the words - Super Psych, or at the very least an embedded link to Cool Story, Hansel! This couldn't be the same Justice Breyer who called BS in the HLP dissent, who tore apart the majority's claims of least restrictive means and advancement of a compelling purpose. Justice Breyer's dissent in Humanitarian Law Project chided the majority for applying a Strict-in-name-only Scrutiny (I will not use SINO-scrutiny in this blog post, but I am oh so tempted) and allowing the material support statute to survive a facial challenge. He then went on to apply only intermediate scrutiny and still strangled the statute for lack of a mens rea requirement (albeit in dissent).

But here, Justice Breyer was fine with CA's attempt to shoehorn violent video games into a Miller framework, finding that the statute was narrowly tailored and served a compelling interest. What? How did this happen? After Justice Breyer dispenses with the vagueness issue, he finds that the statute is narrowly drawn, because it "prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help." But surely there is a burden on game makers, surely this law is practically designed to slow the creation and sale of violent video games generally. Wouldn't this prohibit game sales to adults lacking ID? Do we really think this won't chill the purchase or production of these items? One can always come up with a less restrictive way; that's why, before HLP, Strict Scrutiny was a statute death sentence.

Justice Breyer says that upholding the statute wouldn't invite a wave of censorship in traditional media, due to the fact that "a typical video game involves a significant amount of physical activity." I don't believe that this law only applies to Wii games. I can see the future pop-up book legislation now, but thankfully those less physically demanding books are safe. And interactivity can't force a different result (first they came for the choose your own adventure books, and I was not a choose your own adventure book so I did nothing . . . ).

The compelling interest section of Justice Breyer's argument then focuses on video games as a teaching tool and increased aggression in violent video game players. I never thought that Jack Thompson and Justice Breyer would be nodding in agreement, but here we are. I used to work in the field of educational video games, and I will tackle the "video games as murder trainers" argument in another post. The research for video game violence is not a slam dunk; there are a large number of ways to reduce the aggression of minors, etc. Any discussion of this topic needs to take two things into account: the enterprise of banning minors from buying 18+ games will require ID checks and other costs that retailers may choose to avoid by declining to carry any 18+ titles; and the rating of video games is notoriously subjective (for those of you who are interested in game rating procedures, I point you to the Hot Coffee Mod and the less famous Elder Scrolls Skin stories).

To sum up: Justice Breyer in HLP strongly implies that nothing or almost nothing survives Strict Scrutiny in the Speech context, but then he goes on to apply SS and uphold a (in this writer's ever so humble opinion) really crappy statute. Where have you gone Justice Breyer, the nation turns its lonely eyes to you, whoo whoo whoo.

NOTE: I do acknowledge that Justice Breyer wrote in dissent in U.S. v. Playboy, and there he voted to uphold pornography zoning on cable television. However, that case was a much tougher call (5-4; in fact, I would wager that the dissent in that case started off as a majority opinion) and had the (usually) winning combination of sex and kids. Here, there was only kids and a finding of possible harm. You subtract the sex and you lose Justice Scalia's vote (a dissenter in Playboy). And when that possible harm is exposure to violence, a favorite flavor of almost all Western Literature, you aren't going to carry much of the court. 

(Andrew Moshirnia is a recent graduate of Harvard Law School. He won't mention the fact that he loves apophasis.)