On Monday, June 27, 2011, the United States Supreme Court struck down the California video game law on First Amendment grounds . . . barely.

Most of the news reports about the decision called it a 7-2 decision in favor of the First Amendment rights of minors to purchase whatever violent video game they want. But those reports have it wrong. Yes, the justices voted 7-2 to strike down the law. But while the news reports made it seem like a completely lopsided knockout, they missed the fact that those justices who voted to strike down the law were split 5-2 on the substantive reasons for doing so.

Let’s back up and remember what the case is about and why it is important to the entertainment industry and to anyone who values First Amendment protection for (even bad) artistic expression.

Video games have been violent since Blinky first made Pac-Man’s jaw extend around his innards until he eventually exploded. Certain video game empires have been built around the mesmerizing effect of cartoonishly gory deaths. While the subject of violence in video games has long been a hot topic, as video games have become more realistic in their portrayals of violence, talk has turned to action. Numerous states have tried to pass laws to restrict the sale of violent video games to minors. In each case, the law was struck down on First Amendment grounds. The laws were so soundly and completely overturned by the courts that almost everyone who followed the issue thought that it was a foregone conclusion that such laws would never stand and that, eventually, states would give up trying to legislate in this arena.

But then the United States Supreme Court agreed to hear and decide Brown v. Entertainment Merchants Association, the case concerning California’s attempt to restrict the sale of very violent video games to minors.

All of a sudden, the video game industry got as nervous as you did when you first faced Tyson on the final level of Mike Tyson’s Punch-Out. Why did the Supreme Court take the case? Did it want to give clear direction to the states to stop trying to limit First Amendment protection to this form of media? Or did the Court really think that video games were new and different enough to warrant serious consideration of a limitation on First Amendment protection?

We now know that it was the latter, and we know that, despite the fact that there were only two dissenting justices, the Court was closely divided on the issue. The nine justices issued fourdifferent opinions, meaning that there were two different rationales for striking down the law and two for upholding it. As to the ultimate question of whether the First Amendment protects aminor’s right to purchase this particular form of media, it actually all came down to one vote (as explained below). And unlike usual, the difference in opinions is not based on the traditional test of liberal justices versus conservative justices (liberals and conservatives are found on both sides of the issue). In other words, a change of one justice — liberal or conservative — could tip the balance the other way in a future decision.

To understand what I mean, you have to understand the four different positions stated in the decision.

Opinion No. 1: Scalia wrote the majority opinion, which was joined by Kennedy, Ginsburg, Sotomayor and Kagan. They agreed that as far as the First Amendment is concerned video games are no different from every other form of media that has come before and are entitled to the same protection. “Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” They also agreed that minors specifically are entitled to receive the same benefits as adults. So, if the First Amendment does not allow a state to restrict the sale of violent books to minors, and the five-person majority was clear that it does not, then it also does not allow a state to restrict the same of violent video games to minors. “Certainly thebooks we give children to read — or read to them when they are younger — contain no shortage of gore. Grimms’ Fairy Tales, for example, are grim indeed.” The fact that video games may be more participatory than other forms of media does not matter. “As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than kind. [A]ll literature is interactive. ‘[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.” This five member opinion is the opinion the video game industry and young lovers of violent video games hoped would be shared by a higher number of justices.

Opinion No. 2: Alito, joined by Chief Justice Roberts, found Scalia’s reasoning overly simplistic. “There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or television show.” Alito and Roberts agreed to strike down the law, but not because the First Amendment necessarily protects video games like other forms of media. Rather, they found that the California law was impermissibly vague. They reasoned that the definition of “violent video game” did not give people of ordinary intelligence fair notice of what was prohibited. But they also gratuitously went on to explicitly invite state legislatures to try again. “I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.” In other words, if the law had been drafted differently, these two may have ruled in favor of the ban.

Opinion No. 3: Thomas voted to uphold the law because he does not believe that minors have any First Amendment rights to begin with.

Opinion No. 4: Breyer voted to uphold the law because he found that the possible danger to minors specifically that comes from playing video games was sufficient to survive the strict scrutiny standard by which limitations on free speech are judged. Remember, that not all speech is protected; one may not cry “fire” in a crowded movie theater (unless, of course, there is a fire; in which case, it’s highly encouraged). The question is whether there is a compelling need to limit the speech. Breyer held that, in the case of violent video games being purchased by minors, there was. Noting that the constitution allows a state to restrict sales of sexual materials to minors, Breyer reasoned that there is just as compelling a need to restrict the sales of violent materials to minors. “[W]hat 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 women, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the women — bound, gagged, tortured, and killed — is also topless?”

(As an aside, I believe that Breyer’s point is persuasive, but in the other direction. He unintentionally proves to this author that restricting a 13-year-old boy’s right to purchase sexual depictions also should be held to violate the First Amendment. But it will be a cold day in Hell before this author ever persuades the Supreme Court of that point, as the Court clearly views graphic depictions of sex — aka “obscenity” — as different in kind, and unworthy of First Amendment protection.)

So, with this understanding of what each Justice actually believes, one can immediately see that only 5 of the nine justices believe that minors are entitled under the First Amendment to own and play media in the form of a violent video game. The other four do not believe the First Amendment applies, either because the media at issue is a video game or because the citizen at issue is a minor or both.

So, as with any 5-4 decision, we can expect the state legislatures around the country to try, try again. And we can expect the issue to become an issue when any new, potential Supreme Court nominee is up for a vote in the Senate. In other words, the issue is not resolved. Just like that pesky Dr. Wily, it will likely raise its ugly head again.

And here comes some personal editorializing… I say “ugly” because, unlike Justices Thomas, Alito, Roberts and Breyer, I actually was a kid once. Instead of dressing up my mother’s robe banging a fake gavel on the table with a stern look on my face, I was playing cops and robbers and cowboys and Indians and any number of other games of pretend. Some of those games involved imaginary violence. I killed scores of my friends, over and over and over again, sometimes in gruesome ways… in my mind (which is a critical fact). Anyone who plays video games (especially in multi-player mode) sees the parallels at once. So, if a state could literally outlaw kids from playing a violent video game, why not outlaw kids playing pretend games of violence in their own backyards? What is the difference?

Kids should have rights too. Included in those rights should be the right to express oneself, even if the expressions take the form of imagining and pretending acts of violence (a form of expression that’s persisted in children forever). A video game is simply an evolved form of pretend. If there is to be a limitation on a kid’s right to pretend, that limitation should be imposed by the kid’s family, not by the state. Why should the state get to decide that reading Grimm’s Fairy Tales is ok, but acting out the same words in a well-choreographed game of pretend is not? That is antithetical to everything that freedom of expression stands for.