This American life of ours has long been pro-violence and anti-sex, unless the two can be merged so that violence is the dominant theme. The U.S. Supreme Court reaffirmed that historical record on Monday in declaring California's ban on the sale of violent video games to minors unconstitutional while continuing to deny constitutional protection to purely prurient sexual material for either minors or adults.
The California law that the court struck down prohibited the sale or rental of violent games to minors "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being," unless the work, taken as a whole, possessed redeeming literary, artistic or social value -- qualities that limit censorship of sexually "obscene" material.
The Supreme Court, in essence, said no -- "sexually assaulting an image of a human being" is protected speech, but depicting graphic sexual activity that is nonviolent and consensual is not.
"California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter," Justice Antonin Scalia wrote in the majority opinion. "That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct.' "
As Scalia put the prevailing argument that says yes to violence and no to sex, it is only violence that possesses deep cultural roots going back to our favorite fairy tales. Arguing that "violence is not part of the obscenity that the Constitution permits to be regulated," Scalia made clear that the problem is with the sex and not the violent or misogynist behavior that some critics argue will result from material the court defines as obscene: "Because speech about violence is not obscene, it is of no consequence that California's statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child."
1
1
