ESA lauds the late Antonin Scalia, justice who enshrined video games as protected expression

Supreme Court Justice Antonin Scalia's death yesterday is of particular note to the video games industry, for while Scalia had been a controversial and polarizing figure for some of his opinions, he was a friend to games in a comprehensive 2011 ruling that established them as works of expression fully protected by the First Amendment.

The Entertainment Software Association noted Scalia's sudden passing, of natural causes in Texas, with the following statement:

The Entertainment Software Association joins those who salute the service and mourn the loss of Justice Scalia. In 2011, when our industry defended the rights of creators and consumers of video games before the U.S. Supreme Court, it was Justice Scalia who authored the historic majority opinion. He declared, with no ambiguity, that video games, like books, movies and other forms of expression, are deserving of First Amendment protections. It was a momentous day for our industry and those who love the entertainment we create and we are indebted to Justice Scalia for so eloquently defending the rights of creators and consumer everywhere.

The case the ESA mentions was Brown vs. Entertainment Merchants Association, in which California had passed a law in 2005 that imposed criminal penalties on those who sold violent video games to minor children. The state also placed other conditions and restrictions on the sale of video games it considered dangerously violent. California was regulating games as a product like cigarettes or liquor; Scalia, writing for the 7-2 majority, said they are expressive works like books, films and music and are accordingly entitled to protection under law and precedent respecting freedom of expression.

Scalia's opinion was a comprehensive strike against all points California argued — that video games, as an interactive medium, were somehow different; that the violence they supposedly incite is as dangerous as tobacco or alcohol to minors, is qualitatively different from the violence presented in cartoons or games rated for younger children, or even exists; and that the state had a compelling interest in regulating it as it would the sale of pornography or obscene material.

(In one of the most starkly ironic features of this saga, the California legislator who sponsored this law later pleaded guilty to corruption charges involving firearms trafficking. State Sen. Leland Yee faces up to 20 years in prison and is still awaiting sentencing.)

Longer term, though, the ruling in Brown vs. Entertainment Merchants Association is remembered by games enthusiasts and advocates as a coming-of-age moment. It's a point in time when the medium, which even a year earlier was still being subjected to contemptuous dismissals of ever being artistically meritorious, acquired the same legitimacy as plays, novels, and dance.

Scalia was unmistakably a controversial political figure, for other rulings and also his view of the United States Constitution as a mainly rigid document whose words do not change meaning over time. But in applying that principle to this case, he rendered an important defense of free expression over all, and required that this new medium be included with it.