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GWEN IFILL (Newshour): The Supreme Court ended its term today with a pair of major decisions that turned on the constitutional right to free speech. By 7-2, they agreed to throw out a California statute that banned the sale and rental of violent video games to minors. Supporters of the law argued that the games allow children to simulate grotesque acts of violence.
But the video game industry said the games should be treated like any other form of entertainment. The court also struck down a provision of Arizona's campaign finance system that provides extra money to publicly funded candidates when they face well-funded rivals.
Joining us now to discuss the court's final rulings of the session is NewsHour regular Marcia Coyle of "The National Law Journal."
Marcia, starting with this California statute that was tossed out, give us the genesis of this.
MARCIA COYLE, "The National Law Journal": OK.
California passed the law 2005 that prohibited the sale or rental of violent video games to anyone under the age of 18. And a violent video game, they defined, was one that gave the player the option of killing, maiming, dismembering, or sexually assaulting a human image.
It also lacked -- would lack any serious literacy, artistic, political, or scientific value and would appeal to a minor's morbid or deviant interests.
GWEN IFILL: Well, how do all of those things -- that sounds pretty awful.
(LAUGHTER)
GWEN IFILL: How does killing, maiming, dismembering, and sexual assault fit under the rubric of free speech protection?
MARCIA COYLE: Justice Scalia wrote the opinion for a 7-2 majority today.
And he said, basically, California was asking the court to create a new category of unprotected speech. The court has found unprotected speech in only a handful of cases, things like obscenity, fighting words. He said that there was no long history or tradition in this country of prescribing minors' access to violent content.
And he gave as an example Grimm's fairy tales, which he said were grim indeed. And he said, for example, Cinderella's three evil step-sisters had their eyes plucked out by doves. Hansel and Gretel got rid of their captor by baking her in an oven.
GWEN IFILL: But the reader of those books didn't actually pick up a virtual gun and pluck out the eyes of Cinderella's sisters. So -- so, you -- what's in these games that we're talking about. They're very -- probably, anybody with a teenager at home is familiar with them.
MARCIA COYLE: Right. Right.
What's in the -- exactly in the games?
GWEN IFILL: Yes. I mean, what, shooting, running blood?
MARCIA COYLE: There is everything. There's shooting. There's killing. There's rape. There's urinating on women or children.
The next step for Justice Scalia, though, was to say, OK, California, you have this law. In order to pass scrutiny under the First Amendment, there has to be a compelling reason for the law. And the law also has to be narrowly drawn to achieve that interest.
California argued that there were studies showing that you could -- you could link the playing of these violent video games to increased aggression in minors. Justice Scalia said the studies weren't sufficient, that they were conflicting. They were inconclusive.
So there was -- the compelling interest wasn't there. He also said it wasn't narrowly drawn. For example, it was underinclusive. It only singled out violent video games, not violent books, not violent movies. And it was overinclusive. There are actually some minors whose parents don't care if their children have these violent video games. But they were swept in to the prohibition as well.
GWEN IFILL: So, there -- it was 7-2. So there were two dissents.
MARCIA COYLE: Yes.
GWEN IFILL: Who dissented and why?
MARCIA COYLE: The real dissents were by Justice Thomas and Justice Breyer.
Justice Thomas has long believed that the drafters of the First Amendment never envisioned minors having First Amendment rights or access to speech except through parents or guardians. That ended it for him. This law was constitutional.
Justice Breyer felt that there was sufficient evidence here that the court should defer to the legislature's judgment in California, that this law should be upheld. He asked, for example, does it make sense, under the court's precedents, that you can prohibit the sale of a magazine showing nude women to a 13-year-old boy, and yet you're going to protect the sale of a video game in which that same 13-year-old, acting virtually, bind, gag and kill a woman?
There is one inaccurate measure used by Justice Scalia (if the report is accurate), parents who allow their child to have violent video games are NOT effected by the California law. Parents can still buy the game for their child, the law just prohibits sale directly to children.
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