# What does this have to do with the first amendment? **URL:** \ **Category:** Factual Questions\ **Created:** [June 27, 2011, 7:36pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055 "2011-06-27T19:36:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![what\_do\_I\_type\_here](https://avatars.discourse-cdn.com/v4/letter/w/a5b964/32.png) [@what\_do\_I\_type\_here](https://boards.straightdope.com/u/what_do_I_type_here)\ **Post date:** [June 27, 2011, 7:36pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/1 "2011-06-27T19:36:03Z")
From [this article](http://news.yahoo.com/s/ap/us_supreme_court_violent_video_games): > [@](#): > > On a 7-2 vote, the high court upheld a federal appeals court decision to throw out California’s ban on the sale or rental of violent video games to minors. The 9th U.S. Circuit Court of Appeals in Sacramento had ruled that the law violated minors’ rights under the First Amendment, and the high court agreed > [@](#): > > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Where in that text is the right to passively experience something guaranteed? The amendment deals with expressing ideas, not being exposed to ideas. If anything, a video game ban violates the rights of the game’s producers, not its consumers. Okay, I admit I’m being deliberately obtuse. I know the constitution and bill of rights get interpeted in different ways and judges don’t neccessarily follow the literal wordings. But this seems like such a stretch to me. The right to play video games seems like something that is guaranteed by the fourteenth amendment (equal protection, privleges, immunities, etc.) not the first. So basically, I am arrogant enough to say “the supreme court got it wrong.” I know I’m wrong, but why? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [June 27, 2011, 7:42pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/2 "2011-06-27T19:42:15Z")
Seems a bit odd on the surface. Does this mean I can sell hardcore to minors as well because it’s thier 1st ammendment right? I have a feeling I’m mising something. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [June 27, 2011, 7:48pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/3 "2011-06-27T19:48:57Z")
> [@](#): > > abridging the freedom of speech Abridging is abridging – you have the right to speak in general and you have the right to speak to me. What good is your free speech if the law says I can’t be exposed to it? Without making a judgment either on the law or the court ruling, I’d offer the opinion that a law that blocks an entire class of people from having access to an entire category of expression at least deserves scrutiny. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [June 27, 2011, 7:49pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/4 "2011-06-27T19:49:51Z")
Freedom of speech and of the press has to be about both the right to produce (and publish) media, and the right to consume media. So, for example, film-makers have the right to make movies, and film-goers have the right to watch movies. The court simply said that video games are a medium subject to the same protection. But I think there is a problem that graphic depictions of violence are allowed to be sold to children, while graphic depictions of sex are not: pornography still does not get the full First Amendment protection. I really don’t understand that one. ---
**Author:** ![spikebrennan](https://avatars.discourse-cdn.com/v4/letter/s/838e76/32.png) [@spikebrennan](https://boards.straightdope.com/u/spikebrennan)\ **Post date:** [June 27, 2011, 8:02pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/5 "2011-06-27T20:02:12Z")
> [@what\_do\_I\_type\_here](#): > > From [this article](http://news.yahoo.com/s/ap/us_supreme_court_violent_video_games): > > Where in that text is the right to passively experience something guaranteed? The amendment deals with expressing ideas, not being exposed to ideas. If anything, a video game ban violates the rights of the game’s producers, not its consumers. The opinion itself is [[http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf](http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf) here], if you’re interested. First, you’ll notice that the parties to the lawsuit are “Brown, Governor of California” (i.e., the state legislature, defending the constitutionality of their statute) vs. “ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.” (i.e., the industry). The case is _not_ about the right to experience a video game, the case is about the right of the video game industry to produce and sell them. You didn’t ask, but I’ll tell you anyway: The First Amendment says “Congress shall pass no law…”, but in this case, it’s not the U.S. Congress, but the state of California that passed the law. But there is a long line of caselaw, going back to the 19th century (and derived from, among other things, the Fourteenth Amendment to the U.S. Constitution) stating that the First Amendment and some (but not all) parts of the Bill of Rights apply to the states as well as to the federal government. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [June 27, 2011, 8:34pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/6 "2011-06-27T20:34:30Z")
> [@zoid](#): > > Seems a bit odd on the surface. Does this mean I can sell hardcore to minors as well because it’s thier 1st ammendment right? I have a feeling I’m mising something. If you read the opinion, you’ll see that this is explained. What Scalia (the author of the opinion) says, basically, is that there is a long tradition of children being exposed to violence, for example fairy tales, but there is no long tradition of children being exposed to porn. I don’t know whether I agree with this, but that’s what he said. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [June 27, 2011, 8:50pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/7 "2011-06-27T20:50:55Z")
> [@suranyi](#): > > If you read the opinion, you’ll see that this is explained. What Scalia (the author of the opinion) says, basically, is that there is a long tradition of children being exposed to violence, for example fairy tales, but there is no long tradition of children being exposed to porn. > > I don’t know whether I agree with this, but that’s what he said. I have no prior opinion about Justice Scalia, but that being said, it’s a pretty lame argument. So the theory is…there’s a precedent for exposing children to one kind of harmful content so we must continue to allow it while disallowing other harmful content? ---
**Author:** ![Kinthalis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kinthalis/32/16084_2.png) [@Kinthalis](https://boards.straightdope.com/u/Kinthalis)\ **Post date:** [June 27, 2011, 8:55pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/8 "2011-06-27T20:55:47Z")
> [@zoid](#): > > I have no prior opinion about Justice Scalia, but that being said, it’s a pretty lame argument. > > So the theory is…there’s a precedent for exposing children to one kind of harmful content so we must continue to allow it while disallowing other harmful content? Wasn’t another facet of this whole thing the fact that there is no scientific evidence showing that violent content is harmful to minors? ---
**Author:** ![what\_do\_I\_type\_here](https://avatars.discourse-cdn.com/v4/letter/w/a5b964/32.png) [@what\_do\_I\_type\_here](https://boards.straightdope.com/u/what_do_I_type_here)\ **Post date:** [June 27, 2011, 9:56pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/9 "2011-06-27T21:56:08Z")
> [@spikebrennan](#): > > The opinion itself is [[http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf](http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf) here], if you’re interested. > > First, you’ll notice that the parties to the lawsuit are “Brown, Governor of California” (i.e., the state legislature, defending the constitutionality of their statute) vs. “ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.” (i.e., the industry). The case is _not_ about the right to experience a video game, the case is about the right of the video game industry to produce and sell them. Okay, that does make sense to me. The article made it sound (to me at least) that the case was all about the consumer’s rights. > [@](#): > > You didn’t ask, but I’ll tell you anyway: The First Amendment says “Congress shall pass no law…”, but in this case, it’s not the U.S. Congress, but the state of California that passed the law. But there is a long line of caselaw, going back to the 19th century (and derived from, among other things, the Fourteenth Amendment to the U.S. Constitution) stating that the First Amendment and some (but not all) parts of the Bill of Rights apply to the states as well as to the federal government. That’s really interesting; I don’t think I knew that. For the record I’m not arguing for or against the ban, I was just wondering about the legal reasoning. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [June 27, 2011, 10:35pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/10 "2011-06-27T22:35:06Z")
> [@suranyi](#): > > What Scalia (the author of the opinion) says, basically, is that there is a long tradition of children being exposed to violence, for example fairy tales, but there is no long tradition of children being exposed to porn. As usual, Scalia is wrong. All those murals on the walls, and the statues in the houses in Pompey in ancient times – was there something that made them invisible to children? ---
**Author:** ![njtt](https://avatars.discourse-cdn.com/v4/letter/n/ecd19e/32.png) [@njtt](https://boards.straightdope.com/u/njtt)\ **Post date:** [June 27, 2011, 10:46pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/11 "2011-06-27T22:46:58Z")
> [@zoid](#): > > I have no prior opinion about Justice Scalia :eek: Have you been living under a rock? Scalia, as the leading conservative ideologue on the Supreme Court (and thus, very arguably, the most powerful Conservative in America), is surely one of the most polarizing public figures in the U.S.A. today. He is often in the news, and I don’t think he inspires indifference in many people. He’s definitely a love him or hate him guy. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [June 27, 2011, 11:28pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/12 "2011-06-27T23:28:15Z")
> [@t-bonham@scc.net](#): > > As usual, Scalia is wrong. > > All those murals on the walls, and the statues in the houses in Pompey in ancient times – was there something that made them invisible to children? Yes. There were statutes barring minors from looking at them. 😃 Seriously, that’s pretty much what we have now with the internet “There’s hardcorn porn on this site. If you’re under 18, please don’t look!” ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [June 27, 2011, 11:47pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/13 "2011-06-27T23:47:03Z")
> [@Kinthalis](#): > > Wasn’t another facet of this whole thing the fact that there is no scientific evidence showing that violent content is harmful to minors? Is there scientific evidence showing that pornography is harmful to minors? ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [June 27, 2011, 11:52pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/14 "2011-06-27T23:52:45Z")
> [@spikebrennan](#): > > You didn’t ask, but I’ll tell you anyway: The First Amendment says “Congress shall pass no law…”, but in this case, it’s not the U.S. Congress, but the state of California that passed the law. But there is a long line of caselaw, going back to the 19th century (and derived from, among other things, the Fourteenth Amendment to the U.S. Constitution) stating that the First Amendment and some (but not all) parts of the Bill of Rights apply to the states as well as to the federal government. > [@what\_do\_I\_type\_here](#): > > That’s really interesting; I don’t think I knew that. Specifically, the 1st amendment was incorporated in Gitlow vs. New York. > **[Gitlow v. New York](https://en.wikipedia.org/wiki/Gitlow_v._New_York)** > > Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one ... ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 28, 2011, 1:55am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/15 "2011-06-28T01:55:01Z")
> [@suranyi](#): > > If you read the opinion, you’ll see that this is explained. What Scalia (the author of the opinion) says, basically, is that there is a long tradition of children being exposed to violence, for example fairy tales, but there is no long tradition of children being exposed to porn. Accepting that statement as true, why does it follow that it is therefore the 1st and 14th amendment RIGHT for someone to communicate violent messages to children? Up until 30 or 40 years ago, we sold tobacco to children. Is that an equal protection violation since there is a long and rich history of it? I thought that Thomas’ dissent was the most legally astute and that Breyer made a good point as well.. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [June 28, 2011, 2:10am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/16 "2011-06-28T02:10:45Z")
> [@jtgain](#): > > Accepting that statement as true, why does it follow that it is therefore the 1st and 14th amendment RIGHT for someone to communicate violent messages to children? > > Up until 30 or 40 years ago, we sold tobacco to children. Is that an equal protection violation since there is a long and rich history of it? > > I thought that Thomas’ dissent was the most legally astute and that Breyer made a good point as well.. No offense, but this is apples and beef jerky. Freedom of Speech just doesn’t cover tobacco, it’s a health issue. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [June 28, 2011, 3:26am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/17 "2011-06-28T03:26:40Z")
Has a state ever tried to restrict the sales of _non-obscene_ sexual material to minors? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [June 28, 2011, 3:40am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/18 "2011-06-28T03:40:46Z")
> [@njtt](#): > > :eek: Have you been living under a rock? Dude I’m working two jobs and my wife works full time so we can put three kids through private school and still try to actually spend time with them, provide them with home cooked meals, keep up with laundry, shopping, and yard work and help with homework. So yeah - pretty much under a rock 😃 ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [June 28, 2011, 6:50am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/19 "2011-06-28T06:50:15Z")
> [@clairobscur](#): > > Yes. There were statutes barring minors from looking at them. 😃 But… weren’t they often naked as well? ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [June 28, 2011, 3:49pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/20 "2011-06-28T15:49:08Z")
The decision wasn’t, “It’s OK to sell depictions of graphic violence to children.” It was, “It’s not a _criminal offense_ to sell depictions of graphic violence to children.” The case wasn’t about whether the sales acceptable, it was about whether the retailers could be fined by the State for doing so. In general, the Supreme Court takes a dim view of any law that tries to punish speech before it’s spoken/published/skywritten/whatever. [Next page](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055.md?page=2)