Justice Scalia Was a Friend to the Gaming Industry

Do the developers of media such as tabletop arcade games deserve the same “free speech” protections under the First Amendment as other creators of art, such as authors and musicians? According to the late Supreme Court Justice Antonin Scalia, the answer was a decided yes. Scalia wrote the majority decision in a 7-2 Supreme Court decision in Brown v. Entertainment Merchants Association in 2011 and took the gaming industry’s position, effectively ending a long battle in the state of California over the labeling of “violent” video games.

Governmental Regulation and Free Speech

A bill was introduced that would prohibit the gaming industry from renting or selling games to children that allows the player to kill, maim, dismember or sexually assault an image of another human. The bill proposed that each game with this type of content be labeled with a two-inch by two-inch sticker with “18” in bold type. If a distributer sold a game with this content to a child, they would be hit with a $1,000 fine.

Scalia wrote the majority opinion, one that cast down the reasoning behind the governmental regulation the bill called for. He said that the government is only Constitutionally allowed to censor free speech when the words are used to incite violence and a few other very specific exceptions. In general, the government is not allowed to interfere with media content, even if it is believed by some groups to be unfit for certain audiences.

The original bill proposers stated that video games should be an exception due to their interactive nature, but Scalia disagreed. “The basic principles of freedom of speech…do not vary with a new and different communication medium,” he stated.

Scalia’s Legacy

Antonin Scalia was nominated for a Supreme Court appointment in 1986 by President Ronald Reagan. He was a staunch conservative, following an “originalist” view of the law and Constitution. He believed the Constitution is meant to be interpreted according to the original writer’s intention. He died on February 13, 2016 of natural causes at a West Texas ranch and his successor has not yet been nominated.