Stanley Fish: What Does the First Amendment Protect?

In the two First Amendment cases handed down last week — one about limiting sales of violent video games to children, the other about Arizona’s attempt to make public financing more attractive to candidates — the dissenting justices contend that the protection of speech is not really the issue at all.

In his dissent to Brown v. Entertainment Merchants, Justice Stephen Breyer declares that this is not a case, as the majority claims, about “depictions of violence”; rather it is a case about “protection of children.” What Breyer is doing (or attempting to do) is shift the category under which the matter of dispute is to be considered. According to Justice Antonin Scalia, writing for the majority, depictions of violence merit First Amendment protection because they are speech, not acts. Breyer replies that the video games in question are in fact acts, although they are, he acknowledges, acts “containing an expressive component.” That component, he argues, does not outweigh or render irrelevant the “significant amount of physical activity” involved in playing these games, activity in the course of which players do not merely see violent things but do violent things.

The danger Breyer wants to protect children from is not the danger of being exposed to violence, but the danger of being initiated into violence. This happens (or can happen) when game-players are required not merely to view violent acts passively, but to perform them by making a succession of choices (with a button or joystick) that decide the fate of the characters they have created.

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