by Todd Brewster
Here is the headline from Tuesday morning’s New York Times: “Minors Can Buy Violent Video Games, Justices Decide.” Okay, that is sort of true. It relates to the Court’s decision to overturn a California law that regulated the sale of certain violent video games to minors. California had fashioned the law in such a way that it would mimic laws limiting the sale of pornographic literature to children, hoping that the Court would carve out a new class of exceptions to First Amendment protection around violent expression much as it has regarding obscenity. Instead, the Court demurred, determining, 7-2, that the Constitution protects the sale of even offensively violent “speech” to minors. Two justices dissented.
But the headline is misleading. A more accurate headline would have said, “Justices Decide that Violent Video Games, However Offensive, are Protected by the First Amendment.” What is the difference? In the Times’s headline, the focus is on the result. Yes, children will now not be hampered by a California law that prohibited them from buying some violent video games, but the decision cannot be reduced to the simple declaration that “Minors Can Buy Violent Video Games” as if the Court is a parent standing at the checkout counter, making buying decisions for all of us children. The decision was that California’s regulation on the sale of violent video games to minors did not, in the judgement of seven justices of the Supreme Court, meet the very high bar established by the First Amendment for curbing access to speech.
Why is it important to make that distinction? The most basic civics class will describe the American government as divided between three branches: the executive, the legislative and the judicial. Each has its own peculiar function and when one crosses over to act like the other, it not only raises the temperature on talk radio, it also distorts our understanding of our founding document and of our system as it is supposed to work. Last week, Justice Stephen Breyer dissented in the Court’s decision to nullify a Vermont law preventing pharmaceutical companies from using the data on doctors’ patterns in prescribing certain drugs as a tool for marketing to those doctors. While the Majority found this a breach of the drug companies’ speech rights, Breyer instead saw it as an economic regulation that fell properly to the legislative branch’s decision-making power, not the judiciary’s. He even compared the Majority’s reasoning to the dreaded Lochner decision of 1905 when the Court overturned a New York state labor law limiting the hours of bakery employees as a breach of the right of contract — a regrettable decision, later overturned, that has since made the term “Lochner” synonymous with the Court overreaching into the legislative function.
Breyer’s Lochner reference may have gone too far. But no matter what one may think of either the Vermont or the California decisions announced this past week by the Court, it is imperative that journalists recognize and represent the difference between a legislative decision and a judicial one. If they do not, they are not only unfaithful to the reasoning of the justices, they are also unfaithful to their readers who through bad reporting are encouraged, increasingly, to see the Court as yet another political branch where the same kind of divisive and partisan expression that has corrupted our Congress and executive branch simply transfers to the men and women in robes.
A few months ago, while discussing this with the CBS News analyst Jeff Greenfield, he responded to my lament above by saying, “Yes, we may be treating the Court as if it is another political branch, but not out of ignorance. We do so out of recognition that the Court actually acts like another political branch.” To Greenfield, and many others who have covered the Court for years, the tendency of reporters to see the Court’s decisions less as aspects of judicial reasoning, limited by the language of the law, than as thinly-veiled political statements is based on their feeling that the justices tend to first decide and only then work backward to find the reasoning that justifies their decision.
That’s a pretty cynical view and one I do not share. No one can get into the minds of the justices and journalists act presumptuously if they report as if they can. Furthermore, the very fact that the Court has to frame its decisions in relationship to judicial reasoning makes it important that journalists faithfully explain that reasoning as the basis of their reporting. Here, despite the Times’s headline, the Court cannot be said to have decided that minors can buy violent video games. It can only be said to have asserted that the highest law of the land — the Constitution — prevented California from circumscribing the sale and consumption of a form of speech and that, not some determination about the appropriateness of violent expression, was the basis of its decision. Roughly eighty years ago, Justice Oliver Wendell Holmes, wrote in a dissenting opinion that “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” In reporting on First Amendment decisions like the ones above, reporters would do well to recall Holmes’s wisdom.