Do the Supreme Court opinions in Brown v. Entertainment Merchants Association shed light on likely outcome of FCC v. Fox Television Stations indecency case next term? The Swami thinks so. 

When the Supreme Court agreed to hear a challenge to a California law regulating the sale or rental of violent video games to minors, many First Amendment types like myself asked why. A key issue was whether the Court would carve out a new exception to the First Amendment. And the Court accepted the case just one week after it decided United States v. Stevens, in which it emphatically declined to create such a new exception for videos that show cruelty to animals.   Why take another First Amendment case so soon? Perhaps the Court was signaling an intent to limit the Stevens decision to its particular facts (i.e., animal cruelty videos) by opening the door to regulation of violent video games marketed to human children. And if so, might the Court be opening the door to FCC regulation of violent programming?

After the decision in Brown v. Entertainment Merchants Association, it appears the Court knew exactly what it was doing. Brown struck down the video game law, relying on Stevens in refusing to create another new kind of unprotected speech, even as to minors. Broadcasters should be happy. The decision clearly implies that the FCC does NOT have the authority to regulate violent programming. The decision also leads me to conclude that, perhaps more importantly, the Court will side against the FCC in FCC v. Fox Television Stations,the indecency case it accepted on the same day Brown was decided.

The timing may be a coincidence; it was, after all, the last day of the Court’s term.   But I prefer to see an interconnected series of events that takes us from Stevens to Fox in just two moves, with Brown linking them together. Six Degrees of First Amendment law.

The focus of Brown was a 2005 California law prohibiting the sale or rental of “violent video games” to minors and requiring such games to be labeled “18.” (The law defined “violent video games” as those in which “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that (a) “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors”; (b) is “patently offensive to prevailing standards in the community as to what is suitable for minors”; and (c) “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”)

The federal courts in California had ruled that the law violates the First Amendment. California asked the Supreme Court to reverse that ruling.  To California’s disappointment, the Supreme Court affirmed the lower court’s ruling by a deceptively strong 7-2 vote. Here’s a quick summary of the various opinions:

Majority Opinion by Justice Scalia (with Justices Kennedy, Ginsburg, Sotomayor, and Kagan joining):

Justice Scalia once again took up the cause for unpopular speech, acknowledging its rightful place in our society, no matter how tasteless that speech may be. In his words, “disgust is not a valid basis for restricting expression.”

Scalia devoted a good three pages to the idea that Stevens (the case on animal cruelty videos) not only prevents the creation of a new “unprotected class” of speech, but is just the latest in a series of cases in which the Court rejects attempts to “shoehorn speech about violence into obscenity.”   Not being a subcategory of unprotected obscene speech, violent speech receives full First Amendment protection. Justice Scalia noted that violence has existed in media for children (Grimm’s Fairy Tales) to high school reading lists (The Odyssey, The Inferno,and Lord of the Flies), to mainstream novels and films. In rejecting California’s argument that video games present a special concern because they are “interactive,” Scalia gave a nod to one of my own favorite childhood book series, the “Choose your Own Adventure” books.

The California law could have stood only if it met the Court’s “strict scrutiny” test: “The State must specifically identify an actual problem in need of solving, and the curtailment of free speech must be actually necessary to the solution.” But California failed, said Scalia, to “show a direct causal link between violent video games and harm to minors.” Scalia argued that violent video games don’t cause harmful effects to minors, though there may be a correlation. The possibility of a correlation is not enough to restrict free speech, especially in a way that disfavors just one class of speaker:  the sellers of video games. Finally, said Scalia, there is no real need for this law in the face of the video game industry’s voluntary rating system, which he thinks works better than those used by the music and movie industries.

Concurring Opinion by Justice Alito (with Chief Justice Roberts joining):

Alito and Roberts concurred with Scalia, but their separate opinion feels more like a dissent than a concurrence. In their view, California has the authority to tackle violent video games, but they would require the State to define the term “violent video games” more precisely.

Alito agreed that society has been relatively tolerant of violent content, even where it is available to minors. This longstanding tradition of permitting violent speech to reach even the most sensitive eyes and ears provides all the more reason to clearly define a “violent video game” here. But Stevens is not controlling, he concluded, because that case involved the creation, possession or selling of animal cruelty videos by any person; by contrast, this case involved the sale or rental of violent video games to minors. He also felt Scalia’s opinion was far too quick to dismiss the effect of the “first person shooter” aspect of most violent video games on children. 

Dissenting Opinion by Justice Thomas:

A few years back Justice Thomas, in the “Bong Hits for Jesus” case, put forward the (to me) astounding theory that, since schools act in loco parentis, they can restrict student speech however they see fit. In Brown he has taken a similarly wide-ranging and paternalistic stance here: “The practices and beliefs of the Founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech).”   I wonder how Thomas would describe the attitudes toward women and minorities around the time of the Bill of Rights, and how those attitudes play out in current First Amendment law.

Dissenting Opinion by Justice Breyer:

Justice Breyer’s dissenting opinion runs 35 pages, about half of which is an appendix listing studies purported to demonstrate a link between violent video games and violent behavior in children. Breyer feels that the California statute clearly explained what is prohibited because, he says, the words “kill,” “maim,” and “dismember” are no more vague than the word “nudity” as it appeared in an obscenity statute the Court upheld. In fact, said Breyer, the California law is quite similar to the Court’s Miller test for unprotected obscenity, with only a handful of words differing between the two. In his view, the California law is indeed narrowly tailored to a compelling government interest in protecting children.


Implications for Indecency

As reported elsewhere on, the Court has agreed to review FCC v. Fox Television Stations. At issue there, of course, is whether the FCC’s indecency regime is constitutional under the First Amendment. That regime is meant to protect children from, among other things, “fleeting expletives” and the sight of a woman’s unclothed derrière, the allegedly indecent elements in Fox. After Brown, how will that case come out?

The Swami sees at least five votes against the FCC. Here’s what my crystal ball shows, viewed in the light of Brown:

Kagan, Sotomayor, and Ginsburg will rule for Fox. They were likely to do so anyway; their signing on to the majority in Brown only solidifies that in my mind. The fact that Justice Kennedy was part of the majority opinion here has me believing he is in the Fox camp as well, because he has generally been strong on First Amendment issues recently. 

The others are all wild cards to some extent, mainly because their position in Brown seems diametrically opposite to positions each has taken in earlier First Amendment cases.  Still, any of them could provide that all-important fifth vote for Fox; in fact, it’s more likely than not that two or three of these five will side with Fox:  

Scalia wrote the majority opinion in Brown, so you’d naturally believe he’ll take a similarly strict approach to indecency regulation. In fact, he’s been one of the strongest supporters of unpopular speech, back to his deciding vote in the Texas v. Johnson flag burning case.

But Scalia also seems to have an intense distaste for bad words, and might find a way to rule in favor of the FCC without being (at least in his mind) intellectually inconsistent.  For example, in his Brown opinion he placed great emphasis on the fact that violent speech is not a subset of already-restricted obscene speech; indecent speech is more closely related to obscenity, which Scalia might see as a meaningful consideration. Similarly, in Brown he relied on the traditional tolerance for violent speech in this country, a tolerance not shared with indecent speech.

Still, I’m relatively certain Scalia will put those considerations aside – much as he put aside the avowed distastefulness of these video games – and rule, as he did in Brown, that there is no “free-floating power to restrict the ideas to which children may be exposed.”

You might expect Thomas to vote for the FCC, given his extreme dissent in Brown. But don’t forget he was the lone Justice in an earlier Fox v. FCC case (on administrative procedure issues) to question not only the legality of the indecency regulations, but also the entire underpinning of the “scarcity doctrine” that to date has justified heightened regulation of broadcasters. 

Roberts has been very strong on free speech, having written the opinions in both Stevens and Snyder v. Phelps (involving the even more unpleasant conduct of the Westboro Baptist Church). Until his concurrence here, I would have said he’s a lock for Fox. I still believe he is going to rule that way, but he seemed ready to distinguish his own opinion in Stevens, and could find the FCC’s rules more acceptable than the California law in Brown.

At the same time, I’m perplexed by Alito’s vote to strike down the video game law, since he has been (to my mind) the weakest of the current Justices on speech issues. I think, though, that when push comes to shove, he’ll find a way to uphold the FCC.

Finally, there’s Breyer. Also generally strong on free speech issues, but the most likely of the Court’s “liberal bloc” to depart from the others, as he did in Brown. He has now shown that he can be persuaded by empirical evidence. Expect those on the FCC’s side in Fox to try to rely on such evidence. He really could go either way.

In the end, while the names and perhaps the justifications might change, I see FCC v. Fox Television Stations as a 6-3 or 7-2 victory for the broadcasters. Watch this space.