California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." . . . Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. . . . ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. . . . And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
To the right this decision is another triumphant win for the 1st amendment and free speech (I wonder if the right is going to end up regretting equating free speech with corporate profits), for the left it is another in a line of successes by big business in the Roberts court (about 20% of the sales of violent video games are to players under the age of 17).
What struck me about Scalia’s argument was how vacuous it was. Grimm’s fairy tales, stories that inhabit a moral universe, are being compared with games such as Mortal Kombat and Grand Theft Auto which inhabits an amoral and nihilistic universe where violence is both random and extreme; intellectually, artistically and morally there is almost no reasonable basis for this comparison. Secondly children were READ Grimm’s fairy tales not being asked to PARTICIPATE in them! If the Grimm brothers had created a modern video game of Hansel and Gretel the players would have to devise the most violent and graphic death of their captors, and believe me it would not be as prosaic as being baked in an oven! In Scalia’s argument all violence is equal and is not measured by its function in a story but just its severity, how else could anyone make a moral equivalence of Homer’s Odyssey and Mortal Kombat as Scalia essentially does?
If the primary issue is that our society has not set up proper safeguards on ultra-violent imagery being delivered to minors as we have for pornographic content then so be it, Justice Scalia, spare us this insipid argument.