By EMILY BAZELON, The New York Times
When my column about technology and children was published on Sunday, the Supreme Court had not yet ruled on California’s ban on the sale of violent video games to children under the age of 18. Yesterday as expected, the Supreme Court struck down the ban. It was a 7 to 2 decision, but that suggests greater agreement than there really was, as Adam Liptak maps out. What’s most interesting about the fissures on the court is the different thinking among the justices about the impact of technology on children, and the implications for other important clashes over teenagers’ free-speech rights that are percolating in the lower courts.
Scalia doesn’t buy the argument that new technology necessarily poses a new threat to children. In his majority opinion, violent video games are more like Grimm’s fairy tales or Bugs Bunny cartoons than like “a virtual form of target practice,” as Stephen Breyer would have it in dissent. Yes, the games are full of blood and gore. So have children’s literature and movies been for centuries; meanwhile, the country “has no tradition of specially restricting children’s access to depictions of violence.” And looking back, efforts to shield children from this content look peevish and short sighted. In the 1800s, dime novels were blamed for juvenile delinquency. In the early 1900s, it was early movies; in the 1950s, radio dramas and comic books; and next came TV and music lyrics. Scalia doesn’t have to say that all of this seems silly now. It’s obvious. (Instead, he serves up a satisfying defense of low-brow culture: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.”)
Breyer, as well as Alito in a concurrence in which he and Chief Justice John Roberts voted to strike down California’s ban on entirely different grounds, is much more worried about the technology. To these justices, video games pose a new kind of problem because they’re so interactive. “The closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm,” Breyer says of research-based findings that Scalia dismisses.
What does all of this mean for the latest source of panic about children — the Internet? One of the hottest legal issues for schools is whether they can punish children for what they do online when they’re out of school. When one child bullies another on Facebook, or posts a super mean YouTube video about another child from home, can she be suspended? What if she’s threatening or insulting a teacher or principal instead of a fellow student? The lower courts are grappling with exactly these questions. Earlier this month, the U.S. Court of Appeals for the Third Circuit said that schools in two cases could not punish students who posted fake profile pages for their principals on MySpace. The pages ooze disrespect. (Sample line, “HELLO CHILDREN yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL.”) Yet the students wrote them outside of school. So are they really fair game for suspensions?
The Third Circuit judges said no. They found that it wasn’t reasonably foreseeable that the parody could have materially disrupted the school’s daily proceedings — the standard for decades, generally speaking, for whether schools can punish student speech. Other courts, however, have reached the opposite result in somewhat similar cases.
Scalia didn’t address any of this yesterday. It’s all a few steps away from buying and selling video games. But he did tip the majority’s hand in favor of free speech over special restrictions for children. “No doubt a State possesses legitimate power to protect children from harm,” he wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.” Scalia also talked about giving lots of room for parents, rather than the state, to exercise oversight. Along with the four justices who signed his opinion, he’s not inclined to assume that new technology warrants extra state intrusion into the lives of teenagers. Hey, kids, there’s an idea worth “liking” on Facebook.
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