Debate whether the Supreme Court made the correct decision in this case or whether the concerns that Breyer raised in his dissent should have been the ruling of the court.
* Address relevant precedents
*Don’t just summarize the Brown decision. Rather, use details of the Brown decision, and especially the range of views expressed by the justices in the opinion of the court and the concurring and dissenting opinions, as the basis of your discussion.
Brown v. Entertainment Merchant’s Association draws together several issues about the conditions under which the government may be able to impose limitations on freedom of expression. A California statute prohibited the sale of violent video games to children and required them to be labeled. The statute relied upon social science research and was designed to prevent violent, aggressive and anti-social behavior. The Federal district court declared law unconstitutional and on appeal the court of appeals affirmed the district court ruling.
Writing for the Supreme Court (7-2), Justice Scalia argued that, like movies, video games qualify for First Amendment protection. He pointed out that many court decisions have emphasized that the government can’t regulate expression based on content. In fact, only a few categories of unprotected speech/expression exist as was already made clear in Chaplinsky v. New Hampshire, a case reprinted in the Epstein and Walker book. Furthermore, as the Supreme Court ruled in United States v. Stevens, legislatures on their own can’t create new categories of unprotected speech, such as the depictions of animal cruelty raised in the Stevens case. Using language that will become more important during the semester, Scalia argued that, for the California law to be valid, it had to pass the “strict scrutiny” test, show a compelling state interest being advanced and prove “a direct causal link between violent video games and harm to minors.” Using these standards, the Supreme Court found the California statute to be unconstitutional.
Breyer’s dissent raises some thoughtful issues about the public policy disconnect between the sale of obscene materials as opposed to sale of extreme violence to minors. He points out that the Supreme Court had already ruled in Ginsberg v. New York (1968), a case discussed in the assigned reading, that a state could prohibit the sale of depictions of nudity to minors, even though the same materials would not be considered obscene for adults under the Court’s decisions defining obscenity and the Court had justified this distinction based on the compelling need identified by the state legislature to protect children. He wrote in the Brown case: “But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
Required Text: Epstein, McGuire and Walker, Constitutional Law for a Changing America: Rights, Liberties and Justice. Eleventh Edition. 2022. Sage/CQ Press. ISBN: 978-1-5443-9125-0
Lecture Notes for the assignment :
(Boundaries of free expression)
This week’s assignment deals with a variety of issues about where, if at all, to draw constitutional boundaries around the freedom of expression.
New York Times v. Sullivan presents a fundamental problem about the role of the press in a democratic society, the dilemma about how the competing interests in a case like should be balanced and what the boundaries of this freedom should be. Make sure you understand the Sullivan Rule and how it differs from traditional libel standards. The Sullivan case concerns how to balance the interests of a free press with public officials that the press writes about. This is turn raises the issue of whether such protections should extend to public figures and whether all public figures are on the same ground as they seek protection against what they perceive to be an invasion of the right to privacy by a vigorous press. This is the issue raised in the Hustler Magazine case (Hustler Magazine v. Falwell). and whether the magazine went beyond the boundaries of what a free press should allow in what it wrote about Jerry Falwell. Given what Hustler Magazine wrote one might quickly side with Falwell but note that the Supreme Court’s decision against Falwell and in favor of Hustler Magazine was unanimous. In McKee v. Cosby (2019) Justice Thomas argued that the Sullivan Rule has been expanded too far and should be reconsidered. This article from the Communications Lawyer examines Thomas’ opinion in the context of New York Times v. Sullivan.
It is well understood that obscenity and pornography are not protected expression under the First Amendment. More problematic is how to define obscenity and pornography consistent with the constitutional standards designed to protect legitimate expression especially as it applies to literature, films and art. Roth v. U.S is in early and important Supreme Court decision that established a standard for assessing obscenity claims replacing the earlier Hicklin test that had been adopted by American courts from the English decision in Regina v. Hicklin. The reading assignment from the Epstein and Walker book explains the differences between the Roth and Hicklin tests.
Boxes 8.2 and 8.3 in the Epstein, McGuire and Walker book summarize the differing views on the constitutional definition of obscenity that were adopted by justices on the Supreme Court in the aftermath of Roth v. United States. Much of this apparent confusion was resolved in Miller v. California (1973). Miller established yet another test for obscenity and essentially put the problem about how to define obscenity to rest. After Miller, the court devoted more attention to special problems such as how to deal with child pornography, as it did in New York v. Ferber, a case found in your assigned reading.
Another issue is whether cruelty and violence, like obscenity and pornography, should be outside the protection of the First Amendment. Brown v. Entertainment Merchants Association (2011) raises a number of problems about violent video games and the First Amendment. The Brown case is the subject of this week’s discussion board.