The Supreme Court on Monday declared a California law that bans sales of violent video games to minors unconstitutional. The ruling capped an action-packed session at the court, which ran the gamut from campaign finance to gender-based class action lawsuits. We analyze recent rulings and the overall tone of the court session.


  • Adam Liptak Reporter, The New York Times


  • 13:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, behind the American Invents Act, and what a new patent law means for innovators and inventors across the country. But first, the Supreme Court does mortal combat with a California law banning sales of violent video games to minors.

  • 13:07:18

    MR. KOJO NNAMDIAccording to a ruling handed down by the court yesterday, video games are entitled to the same speech protections under the First Amendment as books, movies, or plays. And as such, California violated the Constitution when it passed a law imposing fines on stores that sold violent video games like Grand Theft Auto to people under 18 years old.

  • 13:07:40

    MR. KOJO NNAMDIBut supporters of California's law say yesterday's ruling wasn't so much about protecting the First Amendment as it was about protecting the interests of corporate America, a criticism that the court has heard in the wake of a number of cases during this term. Joining us by telephone to discuss the latest decisions is Adam Liptak. He covers the Supreme Court for the New York Times. Adam, thank you for joining s.

  • 13:08:02

    MR. ADAM LIPTAKGood to be here, Kojo.

  • 13:08:03

    NNAMDIAdam, Grand Theft Auto had its day in court and it won. The Supreme Court yesterday invoking the First Amendment when it struck down a California law banning sales of violent video games to minors. What was the thinking, the philosophy, if you will, behind this ruling?

  • 13:08:17

    LIPTAKThe majority, five justices -- it was a seven-two decision, but five justices formed the core of the majority, and they said three things basically. As you said at the outset, they said video games are treated the same as books, movies, or any other kind of expression. Second, that the court has never allowed the government to regulate depictions of violence.

  • 13:08:38

    LIPTAKThere are only a few categories of speech outside of First Amendment protection. Depictions of sex, obscenity is one of them. But the First Amendment does not allow the government to tell people not to watch depictions of violence. And then third, that even when children are involved it doesn't make a difference. So this law was only aimed at the sale of videos to minors.

  • 13:09:00

    LIPTAKAnd the majority decision written by Justice Antonin Scalia, said that children are exposed to violence all the time, that Grimms' fairy tales, as he put it, are very grim. That Saturday morning cartoons are full of violence. That the Odyssey and Dante and other things on high school reading lists are full of violence, and he wouldn't treat video games any differently.

  • 13:09:21

    NNAMDIThis suggests that the standard that the court is using to decide what should and wouldn't -- and shouldn't qualify as protected speech really includes obscenity, but excludes violence.

  • 13:09:36

    LIPTAKYeah. Quite right. So they're thinking about sex and violence quite differently, the majority is. The majority said that at the time the framers of the First Amendment were fully cognizant of the possibility of regulation or banning of obscenity, but never had the idea that the First Amendment allowed you to ban violence.

  • 13:09:58

    NNAMDILast year, the court struck down a law that made it a crime to buy and sell depictions of animal cruelty, the kind of stuff you see in dog-fighting videos. What room does this ruling and the video game ruling yesterday leave for speech that doesn't deserve protection?

  • 13:10:16

    LIPTAKWell, the court has said that there are very few areas of speech outside the protection of the first amendment, fighting words for instance, incitement, libel, obscenity as I mentioned, extortion, but that they're not gonna be creating new ones. So they refuse to create a new one for depictions of animal cruelty. They refuse to create a new one for violent video games.

  • 13:10:39

    LIPTAKAlso this last term, they decided in quite an unpopular decision in many quarters, to protect the rights of protestors at military funerals. So this is a court for better or worse that takes the First Amendment very, very seriously.

  • 13:10:54

    NNAMDILeland Yee, the California Senator who wrote the state's video game law, said the Supreme Court's ruling was not so much about protecting speech as it was about protecting corporate America. A lot of critics of the Roberts court say it's deferential to business concerns across the board. What do make of that observation on the basis of your own observation of this court?

  • 13:11:17

    LIPTAKWell, the political science data, including performed by people whose general thinking might tilt to the right, suggest that this is a court that's now six years into the Roberts Court, that tends to rule for business interest. This last term though is a little harder to make sense of, because I think the cases, if you count them one by one, split about evenly.

  • 13:11:40

    LIPTAKWhere business interests were involved, the court voted with business about half the time. At the same time in the really big deal cases in what the Chamber of Commerce calls the triple crown on the big cases of the term, all of those came down on the side of business. So there are various ways to make the calculations. I don't think any business lawyer thinks this is a court that's hostile to business interests.

  • 13:12:04

    NNAMDII wanted to get back to the string of cases dealing with the First Amendment and your observation that this is a Court that takes the First Amendment very seriously. I found Justice Clarence Thomas' dissent yesterday interesting in which he said that the he didn't think that the Constitution intended for parents not to be able to have the right to keep this kind of stuff away from their kids.

  • 13:12:28

    NNAMDIBut apparently his closest colleague on the court, Justice Scalia, says that he saw no evidence of the point that Justice Thomas was making.

  • 13:12:39

    LIPTAKWell, what that difference of opinion points out is that the school of constitutional interpretation that both Justices Scalia and Thomas belong to, called a regionalism, meaning that they try to discern the regional meaning of the constitutional text is a little hard to do over two centuries, and kind of depends on what perspective you come at it from.

  • 13:13:01

    LIPTAKSo Justice Thomas said he couldn't imagine the framers gave children First Amendment rights. I guess, you know, that's plausible. Justice Scalia, equally plausible, said no, no, no. The more important point is that that framers never meant to regulate speech showing violence. So you can both be a regionalist and end up in different places depending on how you approach the constitutional text, which of course is fairly abstract.

  • 13:13:29

    LIPTAKIt just says Congress shall make no law bridging the freedom of speech, whatever that means.

  • 13:13:34

    NNAMDIWe're talking with Adam Liptak. He covers the Supreme Court for the New York Times about yesterday's decisions of the final day of this term of the court. Adam, in a closer decision, the court also struck down an Arizona law yesterday that provides escalating public financing to political candidates. What was this case about?

  • 13:13:52

    LIPTAKSo about a third of the states have public financing schemes where if you agree to participate and not take private contributions, you can get some government money. Arizona had a version of that kind of law where it didn't give you just a lump sum at the outset, but also gave you matching funds. So if your opponent spent money, you'd get basically a dollar-for-dollar match.

  • 13:14:15

    LIPTAKAnd the people not participating in this system said that violated their First Amendment rights. Their theory was that they might not want to speak -- might not want to spend that first dollar because they knew they'd get a dollar of counter speech coming in against them. And a five justice majority of the court, essentially the same five, well, exactly the same five as the Citizen's United, and essentially the same five as in a series of Roberts Court campaign finance decisions, said that was right, that the First Amendment required them to strike down this kind of matching fund public finance law.

  • 13:14:49

    NNAMDIHow does this case relate to last year's Citizens United decision that you just mentioned when you put the two together?

  • 13:14:55

    LIPTAKThis is a court that's very, very skeptical of government attempts to regulate any kind of political speech in candidate elections. So this is the fifth time in a row where narrow majorities of the Roberts Court have struck down government attempts to regulate politics as it were. And critics might say that this allows richer and more powerful voices to drown out less robust ones.

  • 13:15:27

    NNAMDIWhat do you think are the cases that defined this term for the court? What are the two or three things that you're taking away from the court after this session?

  • 13:15:35

    LIPTAKWell, we've talked a bit about the First Amendment cases. I think that's the major theme. The second theme is that the court is hostile to big litigations. So in the Wal-Mart case involving as many as a million and a half female workers who said they'd been discriminated against, the court said they could not band together in a single class action, and the court tightened those rules.

  • 13:15:57

    LIPTAKAnd in a case involving a cell phone company and those kind of fine-print contracts they make you sign, the court said that you could use those contracts to do away with class actions. So in two big class action the cases, the court has really pushed back against mass litigation.

  • 13:16:14

    NNAMDII like your term those fine-print contracts they make you sign.

  • 13:16:18

    LIPTAKHave you ever tried to negotiate one, Kojo?

  • 13:16:20

    NNAMDIOh, no. No. No. No. I just hit I agree. What do you make of the cases that are already in the pipeline for when the court gets back to work in October?

  • 13:16:30

    LIPTAKWell, they took an interesting -- two interesting cases yesterday. One of them involving the Federal Communications Commission's indecency policies, the famous seven dirty words from George Carlin years ago, and also partial nudity on "NYPD Blue." And I think this First-Amendment-oriented court might take a challenge to those FCC rules very seriously. They also took a case about whether the government can put a GPS monitoring device...

  • 13:16:55

    NNAMDIThat's the one that we're going to be following pretty closely. That's a privacy-related case.

  • 13:17:00

    LIPTAKMm-hmm. So the question is, without a warrant, without your permission, can the government put a tracking device on your car and track your every movement. And the Obama administration, it must be said, has said that it can, and asked the court to take the case.

  • 13:17:14

    NNAMDIWhat do you think might be at stake when the court rules on that particular case?

  • 13:17:19

    LIPTAKQuite a lot. I mean, as you know, we're living in an era where there is endless information about our private lives on -- available, cell phones, websites, transportation, Easy Pass, whatever. And how much easy access without judicial scrutiny the government can get to that information is a very important privacy question.

  • 13:17:44

    NNAMDIAdam, thank you so much for joining us.

  • 13:17:46

    LIPTAKGreat to be here, thanks.

  • 13:17:47

    NNAMDIAdam Liptak covers the Supreme Court for the New York Times. He joined us by telephone. We're gonna be taking a short break. When we come back, behind the America Invents Act, and what a new patent law means for innovators and inventors across the country. I'm Kojo Nnamdi.

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