Anthony Prestia of Laws of Play, a blog dedicated to covering legal developments in the gaming industry, somehow got some face time with Supreme Court Justice Scalia and was able to ask for his feelings concerning the constitutionality of recent state video game legislation. "In particular," Prestia says, "I asked him whether as an originalist he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment." Here's Prestia's summary and analysis of Scalia's answer:

In his most succinct reply of the day, Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not–-he instantly drew the parallel to regulation of pornography sales. However, Justice Scalia emphasized that unprotected speech, such as obscenity–which he was unwilling to define for reasons that are immediately evident to any constitutional scholar–-can be prohibited from sale regardless of the purchaser’s age. I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment despite his strict originalist beliefs.

That's an interesting response in that Scalia's latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment. But Scalia's earlier suggestion that state laws banning sales of certain video games to minors maybe constitutional deserves a response.

Scalia is certainly correct that states have passed laws banning the sale of pornographic material to minors, but their are two important differences between those bans and a ban on the sale of video games to children. One is obvious: No video game has ever been defined as "obscene to minors." Now, it may be the case that some game will be defined as such in the future. But for now, the primary concern about video games to sales has related to the violence in video games, not the sexual content. And violence has never been equated with obscenity, although Kevin W. Saunders of Michigan State University has been making the argument for many years that the two should be equated in an effort to ban violent video game sales. And there are others who agree with him. But no legislature or court has yet agreed with that reasoning. So, that's the first difference that Scalia ignores.

The second difference Scalia ignores is the mechanism of controlling the sale of video games to children. Every legislature that has so far sought to regulate the sale of video games has proposed that the bans been linked to the sale of games rated a certain way by the game industry's private rating body, the Entertainment Software Rating Board (ESRB). And every one of those measures has been struck down by the courts as unconstitutional. One of the reasons the laws have been overturned is because other court precedents have held that the state may not give a private, voluntary rating system the force of law.

Again, when state governments regulate obscenity, they are not doing so by co-opting some private industry rating system. In the case of video games, however, the states would seek to use "AO" (Adults Only) or even "M" (Mature) ratings that were assigned by the ESRB as the trigger for the law to kick in. That's generally been forbidden by the courts when some states in the 1970s and 80s sought to use the movie industry's private rating system (the MPAA system) to regulate or ban the showing of certain movies or their sale. The reason the courts have blocked such enactments is not just because it would be misguided to allow a private labeling code to become a tool of public censorship. The other reason is actually more compelling: As I pointed out in my big PFF study on video game regulation, if a state sought to use a voluntary rating system to ban certain types of content, it would likely kill voluntary rating systems:

why would game developers continue to voluntarily rate their content if the threat of fines or prosecution looms overhead? Fearing such liability, there is a real risk that many in the industry would likely stop rating games altogether since there would be no penalty for refusing to label content. If this were to occur, parents and all game consumers would lose valuable information about the age appropriateness and content of the games that they are thinking of buying.

So, these are just a few of the factors that Justice Scalia and the Supreme Court would need to consider if a case came before them dealing with the constitutionality of regulating video game sales to minors. This is not to say anyone is in favor of actually selling mature or adult-oriented games to minors. It's just to say that there are more sensible (and constitutional) ways of handling this problem. Parents have many less-restrictive means of dealing with underage access to potentially objectionable games—such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my study and parental controls book for more details on all these things.]