Tuesday, March 6, 2012
Alan E. Garfield, Widener University School of Law, has published 'Reasoning-Lite' in the Violent Video Game Case at 1 Wake Forest Law Review Online 124 (2011). Here is the abstract.
One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings.
Yet, as Justice Scalia’s majority opinion made clear, any such assumption – like so many of the virtual bystanders in these games – was dead on arrival. Scalia’s opinion was not a methodical exegesis about when speech could be curtailed to protect minors. It was a judicial broadside: the verbal equivalent of throwing the California claim out the courthouse door, down the marble staircase, and into a District of Columbia dumpster.
In this essay, I contend that the majority failed to wrestle with the serious issues raised by the case and instead signed onto Justice Antonin Scalia’s glibly written opinion with its facile, “reasoning-lite” analysis. By critiquing Scalia’s reasoning, I am able to offer constructive suggestions for how the Court could more effectively evaluate competing claims in future free speech cases.
Download the paper from SSRN at the link.