When the Supreme Court ruled Monday that a California law banning the sale of violent videogames to minors was unconstitutional, it might have seemed like a foregone conclusion. The 2005 law had been challenged immediately after passage, judged invalid, and found invalid again by the Ninth Circuit Court of Appeals.
But these were the Supremes. Appointed for life, cloistered and hidebound, obsessed with tradition—it was considered scandalous when Chief Justice William Rehnquist added a couple of stripes to the sleeves of his robe in 1995—the nine justices make up the branch of government least changed by the last 200 years. It also has been the branch most hostile to technology. Barack Obama fought to keep his BlackBerry after being elected president, and dozens of members of Congress tweet, but the highest court in the land wouldn’t even release audio recordings of current arguments until last fall.
That’s what makes the court’s 7-2 ruling in Brown v. Entertainment Merchants Association so remarkable. The four youngest justices joined the three oldest in emphatically extending First Amendment protections to videogames for the first time, a historic moment for the digital medium.
The court gave technophiles reason to worry in April 2010. That month, the justices heard arguments in City of Ontario v. Quon, a case about whether an Ontario, California, police officer had a right to send private text messages on a state-issued phone. (They were sexts, but not Anthony Weiner-style pics, if you’re curious.) When it came to the technical issues involved, the Roberts Court displayed something less than a Geek Squad level of expertise.
“What happens, just out of curiosity, if…he is on the pager and sending a message and they’re trying to reach him for, you know, a SWAT team crisis? Does he—does the one kind of trump the other, or do they get a busy signal?” Chief Justice John Roberts asked, according to the official transcript, seeming unclear on the difference between talking and texting, smartphones and pagers.
Anthony Kennedy wanted to know: If the cop is talking to a girlfriend, does an incoming texter “get a voice message that says, ‘Your call is very important to us; we will get back to you’?” And Antonin Scalia, always inquisitive, asked, “Can you print these things out? Could Quon print these—these spicy conversations out and circulate them among his buddies?” In all, the justices’ questions were interrupted eight times by laughter in the chamber, and the group was roundly mocked in the legal blogosphere.
It was a characteristic performance from an institution resistant to change. The justices have a strict seating protocol even at lunchtime, and in court, each one is still provided with his or her own ceramic spittoon. Lawyers arguing before them find quill pens at the lecterns.
Monday’s videogames decision, though, wasn’t stuck in the past. “Like the protected books, plays, and movies that preceded them, videogames communicate ideas—and even social messages…That suffices to confer First Amendment protection,” wrote Scalia, 75, in the majority opinion. “Whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”
Justice Samuel Alito concurred—nervously. “In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution,” he wrote. “We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.”
“They clearly did a lot of diligent research,” said Jeffrey Neuburger, a New York attorney who blogs on novel legal issues in new media and technology. “If you look at the dissenting and concurring opinions, there’s a detailed discussion of videogame technology.” The justices’ much younger clerks are key in cases like this, and are likely behind such unusual Supreme Court citations as Kill Screen, GameTrailers.com, and, for that matter, YouTube.
Still, don’t expect the Roberts Court to get too far ahead of itself technologically. At a legal conference Monday, Roberts reiterated his opposition to letting cameras into the courtroom. Talk turned to social networks. “Different members of the court are more adept at that than others,” Roberts said. “I don’t think any of us have a Facebook page or—or, uh—tweet, whatever that is.”