July 7, 2011, 8:30 pm
Sex and the Supremes
By TIMOTHY EGAN, NY TIMES

Quite a bit of rough stuff was bandied about in one of the final Supreme Court decisions of the term released last month — dismembering, bondage, decapitation, a bounty of bloodletting in video games that bring the thrill of the kill to new levels. No problem there, in the view of the court: for children who want to simulate brutal homicide, it’s protected free speech.

Sex, not so good. Naked women. Naked men. Fornication. Ewww! The black-robed majority made it clear that the United States of America will always make an exception for sex: “historically unprotected speech,” in the words of Justice Antonin Scalia, who wrote the 7-2 video game opinion.

The take-away point from Brown v. Entertainment Merchants Association was that the court continued to expand freedoms granted by the First Amendment. But in overturning a California attempt to ban underage video game sales, the case revealed a fascinating intra-justice discussion about modern depictions of sex and violence — why one can be censored, and the other cannot.

Ultimately, the back-and-forth by the high court reinforced the notion of a nation that will always be a little skittish about sex, while viewing violence as American as apple pie. If this ruling is indeed a triumph for the First Amendment, it continues a strange double standard.

In dissent, Justice Stephen Breyer pressed the issue of why it was O.K. to protect children from sexual images but not from the worst kind of human carnage. His zinger points merit a second look before court-watchers settle into their Adirondack chairs for the summer:

But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively but virtually binds and gags the woman, then tortures and kills her?

Breyer expanded further, pointing to the absurd implications of the court’s drift. “What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only if the woman — bound, gagged, tortured and killed — is also topless?”

Since he asked, the answer seems to be that a First Amendment that bans an exposed breast to a certain age group is a good thing, while a First Amendment that gives that same age group unfettered access to avatars lopping off a breast is benign. It’s a theme that runs through the culture, enough so that Scalia could breezily dismiss parental concerns about the violent digital playpen he’s so afraid of regulating. “Mortal Kombat” and other games of graphic mayhem are part of a long, cherished tradition, this most conservative of justices argued.

“Like protected books, plays and movies, they communicate ideas through familiar literary devices and features distinctive to the medium,” Scalia wrote. “Grimm’s Fairy Tales, for example, are grim indeed,” he continued. “And Hansel and Gretel (children!) kill their captor by baking her in the oven.”

The distinction, lost on Scalia, is that technology has taken violence many steps beyond those charming little home bakers in their dead tree book. Justice Samuel Alito, while backing the majority, warned of that very thing. He said the court may want to revisit the merits of limiting access to violent video games as technology advances the dark arts. Quoting a supporter of restrictions, Alito wrote that the day may soon come when children “will actually feel the splatter of blood from the blown off head of a victim.” Scalia’s Hansel and Gretel comparison only applies if kids are given a choice on how to cook their enemies.

“In some games,” Alito wrote, “points are awarded based not only on the number of victims but killing techniques employed.”

Again, Scalia brushed it aside with his trademark glibness. So what if children’s active minds are engaged in decisions in which people are “dismembered, decapitated, disemboweled, set on fire and chopped into little pieces,” he countered. “Disgust is not a valid basis for restricting expression.”

But disgust is certainly part of the court’s long animus against sexual expression. In the 19th century, the concern was against material that would “deprave and corrupt” an innocent mind; using that justification, great works of literature were banned. The modern benchmark, following the famous definition of obscenity by Justice Potter Stewart — “I know it when I see it” — dates to several cases setting up tests on artistic, literary, political values or violations of community standards.

What California tried to do with its law restricting sales of the most violent kinds of video games was to follow the court’s outline for banned sex material. Scalia was concerned that the law was vaguely worded. As a flabbergasted Breyer wrote: “Why are the words ‘kill’ ‘maim’ and ‘dismember’ any more difficult to understand than the word ‘nudity?’”

A good question. “And for all the teenagers who have read the original version of Grimm’s Fairy Tales,” Breyer wrote, “I suspect there are those who know the story of Lady Godiva.”

Settling the law of the land on this latest iteration of age-old question, the court’s decision makes it clear that children are free to slice a clothed Godiva to bits — on screen — but should be shielded from seeing her as she was when she rode through the streets of Coventry.