Supreme Court of US, case V

[ Pobierz całość w formacie PDF ]

seeks to regulate activity that involves action as well as
speech. See Broadrick v. Oklahoma, 413 U. S. 601, 614
615 (1973). Hence, I shall focus here upon an area within
which I believe the State can legitimately apply its stat�
ute, namely sales to minors under the age of 17 (the age
cutoff used by the industry s own ratings system), of
highly realistic violent video games, which a reasonable
game maker would know meet the Act s criteria. That
area lies at the heart of the statute. I shall assume that
the number of instances in which the State will enforce
the statute within that area is comparatively large, and
that the number outside that area (for example, sales to
17-year-olds) is comparatively small. And the activity the
statute regulates combines speech with action (a virtual
form of target practice).
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
C
In determining whether the statute is unconstitutional,
I would apply both this Court s vagueness precedents and
a strict form of First Amendment scrutiny. In doing so,
the special First Amendment category I find relevant is
not (as the Court claims) the category of depictions of
violence, ante, at 8, but rather the category of protection
of children. This Court has held that the power of the
state to control the conduct of children reaches beyond the
scope of its authority over adults. Prince v. Massachu-
setts, 321 U. S. 158, 170 (1944). And the regulatio[n] of
communication addressed to [children] need not conform
to the requirements of the [F]irst [A]mendment in the
same way as those applicable to adults. Ginsberg v. New
York, 390 U. S. 629, 638, n. 6 (1968) (quoting Emerson,
Toward a General Theory of the First Amendment, 72
Yale L. J. 877, 939 (1963)).
The majority s claim that the California statute, if up�
held, would create a new categor[y] of unprotected
speech, ante, at 3, 6, is overstated. No one here argues
that depictions of violence, even extreme violence, auto-
matically fall outside the First Amendment s protective
scope as, for example, do obscenity and depictions of child
pornography. We properly speak of categories of expres�
sion that lack protection when, like child pornography,
the category is broad, when it applies automatically, and
when the State can prohibit everyone, including adults,
from obtaining access to the material within it. But
where, as here, careful analysis must precede a narrower
judicial conclusion (say, denying protection to a shout of
fire in a crowded theater, or to an effort to teach a terror�
ist group how to peacefully petition the United Nations),
we do not normally describe the result as creating a new
category of unprotected speech. See Schenck v. United
States, 249 U. S. 47, 52 (1919); Holder v. Humanitarian
Law Project, 561 U. S. __ (2010).
4 BROWN v. ENTERTAINMENT MERCHANTS ASSN.
BREYER, J., dissenting
Thus, in Stevens, after rejecting the claim that all de�
pictions of animal cruelty (a category) fall outside the
First Amendment s protective scope, we went on to decide
whether the particular statute at issue violates the First
Amendment under traditional standards; and we held
that, because the statute was overly broad, it was invalid.
Similarly, here the issue is whether, applying traditional
First Amendment standards, this statute does, or does
not, pass muster.
II
In my view, California s statute provides fair notice of
what is prohibited, and consequently it is not impermis�
sibly vague. United States v. Williams, 553 U. S. 285, 304
(2008). Ginsberg explains why that is so. The Court there
considered a New York law that forbade the sale to minors
of a
picture, photograph, drawing, sculpture, motion pic�
ture film, or similar visual representation or image of
a person or portion of the human body which depicts
nudity . . . ,
that
predominately appeals to the prurient, shameful or
morbid interest of minors,
and
is patently offensive to prevailing standards in the
adult community as a whole with respect to what is
suitable material for minors,
and
is utterly without redeeming social importance for
minors. 390 U. S., at 646 647.
This Court upheld the New York statute in Ginsberg
(which is sometimes unfortunately confused with a very
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
different, earlier case, Ginzburg v. United States, 383 U. S.
463 (1966)). The five-Justice majority, in an opinion writ�
ten by Justice Brennan, wrote that the statute was suf-
ficiently clear. 390 U. S., at 643 645. No Member of the
Court voiced any vagueness objection. See id., at 648 650
(Stewart, J., concurring in result); id., at 650 671 (Doug�
las, J., joined by Black, J., dissenting); id., at 671 675
(Fortas, J., dissenting).
Comparing the language of California s statute (set
forth supra, at 1 2) with the language of New York s
statute (set forth immediately above), it is difficult to find
any vagueness-related difference. Why are the words
kill, maim, and dismember any more difficult to
understand than the word nudity? JUSTICE ALITO ob�
jects that these words do not perform the narrowing
function that this Court has required in adult obscenity
cases, where statutes can only cover hard core depic�
tions. Ante, at 6 (opinion concurring in judgment). But
the relevant comparison is not to adult obscenity cases but
to Ginsberg, which dealt with nudity, a category no more
narrow than killing and maiming. And in any event,
narrowness and vagueness do not necessarily have any�
thing to do with one another. All that is required for
vagueness purposes is that the terms kill, maim, and
dismember give fair notice as to what they cover, which
they do.
The remainder of California s definition copies, almost
word for word, the language this Court used in Miller v.
California, 413 U. S. 15 (1973), in permitting a total ban
on material that satisfied its definition (one enforced with
criminal penalties). The California law s reliance on
community standards adheres to Miller, and in Fort [ Pobierz całość w formacie PDF ]

Podstrony