Why violence, but not sex, is protected by the First Amendment

By Alison Frankel
July 23, 2012

In the mid-1950s, a small-time New York publisher named Samuel Roth was indicted for distributing books, magazines, photos and advertising circulars that were accused of being “obscene, lewd, lascivious, filthy and of an indecent character.” The precise content of Roth’s offensive mailings has been lost to history, although it’s probably tame by modern standards. Nevertheless, a federal jury in New York concluded that the publisher violated a law barring distribution of pornography, and the court sentenced Roth to five years in prison. The case eventually made its way to the U.S. Supreme Court. In 1957, the justices upheld Roth’s conviction, in a landmark ruling that obscenity is not entitled to First Amendment protection. The court said that the law had always assumed sexual material is not covered by the Constitution’s free speech provision, so its ruling merely codified that assumption. The Roth decision placed obscenity in the tiny category of exceptions to First Amendment freedom, along with incitement and fighting words.

Fifty-three years later, the Supreme Court was called upon to decide the constitutionality of another federal law, this one making it a criminal offense to create or possess depictions of cruelty to animals. In its 2010 opinion in United States v.  Stevens, the court reminded us that violence – unlike sex – is protected speech, despite Congress’s efforts in the animal-cruelty law to equate violence with obscenity. The justices struck down the law and vacated the conviction of Robert Stevens, a man who sold videos of pit bulls attacking and killing other animals. The government had argued that some speech, such as depiction of the brutal death of innocent animals, comes at too high a societal cost to deserve First Amendment protection. The Supreme Court called that argument “startling and dangerous.”

The issue of First Amendment protection for even the most blood-soaked materials is sure to become part of the discussion of why the alleged Batman killer, James Holmes, opened fire at a movie theater in Aurora, Colorado, killing 12 moviegoers and injuring dozens more. Whenever one of these horrific mass murders is perpetrated we ask the same questions. Why is it so easy for people with no legitimate purpose to get hold of assault weapons? And does increasingly violent, gruesome entertainment, especially in video and computer games, contribute to violence in real life?

The answer to the first question is all too familiar: because our gun control laws (which are themselves subject to constitutional limits) are woefully inadequate. The answer to the second question, though, is equally frustrating: We don’t really know if violence in entertainment leads to violence in reality, but it doesn’t really matter because it’s unconstitutional to restrict depictions of violence. That’s what the Supreme Court has said, repeatedly: You can restrict pornography, but you can’t legislate against violent images.

You can’t even restrict the sale of violent videogames to children. Last year, in Brown v. Entertainment Merchants Association – the Supreme Court’s most recent examination of the intersection between blood, gore and the First Amendment – Justice Samuel Alito did some independent research on the depths of depravity in videogames on the market. “In some of these games, the violence is astounding,” he wrote. “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. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.”

Alito found that players in some games could re-enact the mass murders at Columbine and Virginia Tech, pretending to be the shooters. Or they could be rapists, or genocide perpetrators, or presidential assassins. “If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence,” Alito wrote.

Yet even Alito agreed with the majority (an unusual coalition led by Justice Antonin Scalia and including justices Anthony KennedyRuth Bader GinsburgSonia Sotomayor and Elena Kagan, with Chief Justice John Roberts joining Alito’s concurrence) that a California law barring the sale of violent videogames to minors was an unconstitutional encroachment on the First Amendment. “Whatever the challenges of applying the Constitution to ever-advancing technology,” Scalia wrote for the majority, the First Amendment’s basic principle of free speech remains unwavering, with only those few exceptions the court articulated in Roth and its progeny.

In crafting the videogame restriction, the state of California had attempted, in Scalia’s words, “to shoehorn speech about violence into obscenity,” modeling its statute on the 1968 Supreme Court ruling in Ginsberg v. New York, which permitted New York to bar the sale of obscene materials to minors, and on the 1973 decision in Miller v. California, which set forth a specific test for what sort of pornography falls outside of the scope of the First Amendment. The justices said the state’s attempt to limit restrictions on the games children may buy couldn’t save the law. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” the court said, quoting a 1973 opinion called Erznoznik v. Jacksonville.

In the weeks ahead we’re going to find out a lot about what kind of man Holmes was, and whether he played violent games or watched violent movies. We’re also going to hear a lot of talk about violence in our culture. But if you want to make a difference, fight for gun control. You won’t get anywhere if you try to legislate against even the most repugnant entertainment.

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