It must have been the last, fleeting impulse of a distinctly moral character to have found expression in the legislature of California: a State that has long waived any moral concerns in regulating any dimension of the arts managed to summon a lingering, atavistic concern about children. The legislature brought forth an act to bar the sale or rental of “violent video games” to minors. The legislation then banned games “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.” But in a decision last month, a narrow majority of the Supreme Court, led by Justice Scalia, managed to strike down this measure with ringing conviction, draping the moral sanction of the First Amendment around these “entertainments” (Brown v. Entertainment Merchants Association).
Justice Alito, joined by Chief Justice Roberts, was not so sure. They were willing to concur with the result, holding that the law was not quite precise enough. In separate opinions, Justice Breyer joined Justice Thomas in dissent, and so the majority for this decision came down to the odd ensemble of Justices Scalia and Kennedy, plus the distaff, liberal side: Ginsburg, Sotomayor, and Kagan. There was a split then among the conservatives on the Court, as Scalia added yet another step to the acceptance over the years, of the law on speech that has been built on the premises of Justice Harlan’s relativism: “One man’s vulgarity is another’s lyric.”
Scalia would insist yet again that it is arbitrary to cast moral judgments on the “content” of speech. The same doctrine that led him to accept, as free expression, the burning of crosses and signs of harassment saying “Semper fi fags” (see my Public Discourse essay on this topic here) now leads him to withdraw any ground of judgment, or moral restraint, on a class of “entertainments” that occasioned no particular strain in the past as they were brought under a regimen of legal restraint. Even when we accept capital punishment, we have long backed away from staging executions as spectator sports. And even in this age of coarsening sensibility, we have continued to ban cock-fighting and comparable blood sports. We’ve thought it not wholesome or salutary to cultivate among our people a sadistic satisfaction, a tendency to take pleasure in the agony or torture of human beings—or even animals. The simple root of the matter was reflected a while back in a report in the New York Times of a writer who had gone to see a film in which a woman was dismembered with a chain saw. Behind him, somewhere in the dark, he heard a man moaning, “yeah, yeah.” The reporter confessed to a certain uneasiness about leaving the theater and encountering the same man on the street. He should have been even more uneasy with the recognition that this fellow could have stood in relation to him as a “fellow voter”—a man with whom he was willing to share power over his life.
When we take matters back in this way, we touch an enduring moral concern of the law that runs well beyond the demand for empirical studies. This is not like the question: how many people reading stories of murder and mayhem are likely to go off on their own to commit violent acts? The concern here touches axioms of our understanding that will be in place even as the empirical studies come and go.
Walter Berns got at this matter years ago in a classic essay on pornography, the arts, and politics:
We turn to the arts—to literature, films, and the theatre, as well as to the graphic arts …—for the pleasure to be derived from them, and pleasure has the capacity to form our tastes and thereby to affect our lives. It helps determine the kind of men we become, and helps share the lives of those with whom and among whom we live.
As Berns observed, a community cannot be indifferent to the ways in which its people find their pleasure. That concern will have to be reflected in the laws, which is especially important for republics or popular governments. When the people furnish their rulers from their own ranks, the character of the people cultivated in the local “culture” becomes even more important. I’ve never known an artist who has thought that the arts were matters happily empty of moral significance. They uniformly seemed to assume that a place with a more vibrant culture of the arts would be a more vibrant and better place. They all readily assumed that the arts can ennoble. But if the arts can ennoble, it follows that they can surely also debase.
No one had the least doubt that New York City, in the days of LaGuardia, was one of the most vibrant and liberal cities on the globe. And yet the City administered a system of licensing or censoring movies, along with other entertainments. That regime of legal restraint went forward without apology, because no one doubted the truth that the arts teach. The question had to be: what were the lessons that were taught? Just how readily those lessons were absorbed and converted into action was a matter of prediction or conjecture. The law could hold back in prudence from restraints more severe as society became less and less sure that the spectacles or performances were likely to be taken as incitements and converted immediately into action.
In his opinion in Brown v. Entertainment Merchants Association, Justice Scalia seemed to take as his anchoring premise a certain immanent doubt that these entertainments would have much effect at all beyond their diversion as entertainment. And indeed, some of these entertainments could possibly drain the impulse to violence. Scalia drew on a long tradition of rather scary lethal happenings in books for children. “Grimm’s Fairy Tales,” he said, “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.’ … Cinderella’s evil stepsisters have their eyes pecked out by doves. … And Hansel and Gretel (children!) kill their captor by baking her in an oven. … High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake.
But Justice Alito was not persuaded that these ancient stories, conveyed in print, bore anything like the vividness, the dynamism, and the unsettling closeness to life as really lived, that is experienced in these advanced video games, with some characters rendered in 3-D:
Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.
And for those willing to look more closely at the catalogue of items offered under these new entertainments, they revealed a level of depravity never before seen in a commerce offered openly to the public:
There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech. …The objective of one game is to rape a mother and her daughters;in another, the goal is to rape Native American women.There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews.In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.
To these points of evidence about the entertainments that the Court was addressing in these cases, Scalia complained that Justice Alito “recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.” But surely this was a reductive way of characterizing the argument offered by a colleague, and it was not the typical mode of response from Scalia, ever scrappy and ever seeking to be civil. Alito was not invoking a matter merely of taste (Lat. dis + gustus, taste); he was touching nothing less than the moral grounds of the law. But of course there is always a danger of that concern being translated in that way with judges who have come to absorb the old premises of positivism, imparted in the law schools: that moral judgments are finally reducible to matters simply of likes and dislikes.
Scalia acknowledged that, since 1791, the First Amendment has been understood to contain restrictions on certain classes of speech never thought to be legitimate, and never thought to be claiming the protections of the Constitution. Scalia marked off three such classes: obscenity, incitement, and “fighting words.” He curiously omitted libel, even though, from the very beginning, the First Amendment was never thought to protect the kind of unjust publication and speech that destroyed reputations and businesses and ruined lives. But that omission was no more curious than Scalia’s willingness to go along with the liberal drift in confining “fighting words” to words spoken in a face-to-face encounter. With that move, he has narrowed dramatically the coverage of that term and left out a domain of assaulting words and gestures that have not depended for their assaulting qualities on face-to-face encounters. The most notable example of such speech is the burning of crosses; a gesture readily recognized as wrong even when the victims have not been home to see the crosses burned. Scalia made it clear that the Court was willing to sustain protections for minors in cases of obscenity or pornography. But where there was no connection to those three classes, he was unwilling, as he said, to create a new category for the restriction of speech because of the content it contained.
And yet, those “limitations” he was willing to respect he described repeatedly as “traditional limitations.” They were part, he said, of a “long (if heretofore unrecognized) tradition of proscription.” He respected them, in other words, because they had been respected in the past. But that was strikingly different from claiming that these were the only defensible and coherent limitations on publication or expression. Scalia has already removed from that range of permissible restrictions the burning of crosses and a large domain of “assaulting speech.” Are we really sure that there is no coherent, compelling case for covering them, as many of them were covered in the past? And if a case could be made for restricting them, within the terms of the Constitution, why would it be so clear that these vile entertainments in so-called video “games” would enjoy immunity from the restrictions applied in the past to things far less odious and depraved? Beyond that, if there is any residue of doubt on this matter, what happened to the traditional conservative concern for federalism? Justice Harlan once offered an earnest plea to conservatives to accept, for States and local communities, restrictions on pornography and obscenity that would raise graver problems when applied as a uniform standard across the country as a whole. The legislation had spoken, under a traditional formula, of material that is “patently offensive to prevailing standards in the community.” It is remarkable to think that there are still, in California, any standards recognized for judging what is patently offensive in entertainments, even for children. And if there is a faint moral impulse still remaining in California, what is the urgency for stamping it out?
Justice Alito and Chief Justice Roberts held back from joining Scalia in giving such ringing protection of the First Amendment to these entertainments. Alito preferred to strike down the law in California simply because it contained terms such as “deviant” and “morbid,” which could introduce some critical uncertainty in what exactly was being forbidden. But it is hard to imagine the law being more precise in describing what it meant to forbid, and therefore hard to imagine that the producers or vendors of this material could be in any doubt as to what the law was barring. We may run here into a problem we encounter when the law seeks to bar certain bizarre sexual antics: if the legislators hold back in a decorous reticence, the law can be challenged on grounds of vagueness. If they become overly explicit in describing the things they are seeking to restrain, they convert the statute books into a handbook of pornography. At a certain point, the law simply has to rely on a commonsense understanding of what legislators, armed with a decent vocabulary and sense of decorum, were seeking to express. The occupational hazard for the judges is that their proper vigilance over what is enacted into law may spill over into the fallacy that the legislator, or any other person, can possibly spell out in exhaustive detail everything he means to forbid, without the danger of venturing into things he never meant to reach. At a certain point, the judges may have to settle in with the notion that the law is made by people with ordinary wit and that it can be administered, with tolerable faithfulness, by people with the same human gifts. But in the meantime, it would be a mistake of another order to get fixed on problems of this kind when the ground for the law touches axioms of our understanding, which are accessible even to folks not burdened with a legal education.
Hadley Arkes is Edward Ney Professor of American Institutions at Amherst College. The author of many books, including Natural Rights and the Right to Choose, Arkes sits on the editorial board of Public Discourse.