The Video in Question

Let us consider a video game and describe it in the ponderous language of law. Consider a game—

“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] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
     [Text from the California Assembly Bill 1179, quoted in the recently decided Brown v. Entertainment Merchants Association et al. reachable here.]

California has prohibited sale of such games to minors. The Supreme Court has just held that such a prohibition is a violation of the First Amendment. The only pertinent words in that amendment are: “Congress shall make no law … abridging the freedom of speech.” Since that amendment’s enactment, we’ve discovered that everything is speech, including expenditure of money. Haven’t we? No. Not quite. The Supreme Court holds that—

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
     [Text of Chaplinsky v. New Hampshire (1942). The emphasis is mine.]

Chaplinsky, indeed, upheld the fighting words aspect of this “dispensation.” In Brown v. Entertainment Merchants, the Supreme Court cites Chaplinsky as well as Roth v. United States (1954) in which obscenity is defined as material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.” It’s okay to prohibit obscenity as well, evidently, for the same reasons I’ve italicized in the quote above. The Court also cites Brandenburg v. Ohio (1959) in which the court defined incitement that may be prohibited in these words:

… the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
     [Brandenburg v. Ohio, emphasis mine.]

Now it strikes me that emphasized phrases in all of the above might very easily be applied to video games of the sort defined by the State of California. They are (1) certainly not any exposition of ideas, (2) steps to truth, and (3) certainly operate against social interest in order and morality. Or is it a good thing to let teenaged boys experience, even if only virtually, torturing and raping people? That’s a rhetorical question, by the way. No need to enlighten me.