Monday, June 27, 2011
"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat."
Posted by David Markus
Says Justice Scalia in today's 7-2 opinion in California v. Entertainment Merchants Association, striking down a California law that restricted the sale or rental of violent video games to minors.
I wonder if Justice Scalia actually played Mortal Kombat before writing that in footnote 4. At least he ruled for the First Amendment and struck down the statute. More fun from his opinion:
California’s argument would fare better if there were alongstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—orread to them when they are younger—contain no shortageof gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.
High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).FOOTNOTE 4
FOOTNOTE 4: JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causesthe provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not toenjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy,and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as muchentitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).