Brown v. Entertainment Merchants meets "The Music Man"

This is the post where you find out what Justice Scalia has in common with the Mayor of River City, Iowa and how a good amicus brief can buttress an opinion. Read on.

Con Law professors everywhere work themselves into a lather every June, because that is when the Supreme Court seems to always let fly with its blockbuster opinions.

This term was no different. In the dock for the final day of the term was Brown v. Entertainment Merchants Association.  Brown asked the question of whether California could prohibit the sale of certain video games to minors, specifically the really gnarly ones that middle school boys would call "wicked" or "awesome" or whatever the kids are saying these days. The law was aimed at:

'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,' that is 'patently offensive toprevailing standards in the community as to what is suitable for minors,' and that 'causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.'

So can California do that? Or is that like trying to ban Lord of the Flies because Piggy gets whacked?

As it turns out, the Court said that violent video games and Lord of the Flies are constitutionally the same.

After the break a few words about how Justice Scalia did it--with a little help from his amici.

I know a few too many show tunes for my own good. And the product of one summer vacation in my grandparents van is being able to sing along with the cast recording from Meredith Wilson's "The Music Man."

Word. For. Word.

I know. Frightening. 

But the Supreme Court' Brown opinion put me in mind of the debate River City has over the "caliber of disaster indicated by the presence of a pool table in your community." Whether it actually was "Trouble with a capital T and that rhymes with P and that stands for POOL." As professor Harold Hill said:

Mothers of River City, heed this warning before it's too late. Watch for the tell-tale signs of corruption. The minute your son leaves the house, does he re-buckle his knickerbockers BELOW  the knee? Is there a nicotine stain on his index finger? A DIME NOVEL hidden in the corn crib? Is he starting to memorize JOKES from Captain Billy's Whiz Bang? Are certain WORDS . . . CREEPING into his vocabulary? Words like . . . like SWELL? AHA! And SO'S YOUR OLD MAN?

(I wasn't kidding about the word for word part). 

Although Justice Breyer was doubtless more sincere than Professor Harold Hill, this was essentially the dissenter's position. For them, the danger from violent video games was sufficiently different from violent books to justify increased state regulation--perhaps just something other than a Boy's Band to "keep the young ones moral after school."

Justice Breyer tendered a lengthy appendix of research articles to bolster his position that violent video games were the "first big step on the road to the depths of degradation--FIRST: medicinal wine from a tea spoon, then BEER FROM A BOTTLE."

Like the confused mothers of River City, Justice Alito took the position that he just didn't know enough about these new fangled things to say whether they were or were not more dangerous than Lord of the Flies. He just knew the California law was too much. 

So it fell to Scalia and the majority (like the Mayor of River City) to demand the Bona Fides of this state regulation--to make the case that speech is speech and that Grand Theft Auto has as much First Amendment dignity as Dante's Inferno.

(He actually said that. Check out footnote 4.)

How did he do it? With an amicus brief, specifically the amicus brief filed by the Cato Institute. 

Great amicus briefs don't just parrot the position they support. That's just extra pages and extra work. With friends like that, who needs enemies? 

Effective amici offer something beyond what the parties have said. In this case it was a broader historical perspective on all the other cultural phenomenon that convinced prior generations that we were slouching towards Gomorrah:

• In the 1800’s, dime novels depicting crime were blamed for juvenile delinquency.
• When motion pictures came along, they said "that the moving picture machine . . . tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison.” 
• Radio dramas were next.
• In the late 1940’s and early 1950’s comic books were blamed for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate.
• And, of course, after comic books came television and music lyrics.

Is it completely convincing for Scalia to argue that "all literature is interactive" and to compare Grand Theft Auto with "Choose-Your-Own-Adventure" Books?

Not entirely. But the amici gave him the ammunition he needed. With a little help from his friends, he made the historical case that today's POOL TABLE might only be tomorrow's pool table. And where speech is involved, it's best not to go off half-cocked, or you might wind up with a Wells Fargo Wagon full of band uniforms.

And that would be silly.