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The Court as Mr. Fix-It?—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published in The New York Times on May 1, 2010.

The Court as Mr. Fix-It?
By Linda Greenhouse ’78 MSL

Prohibition ended 77 years ago, yet Americans have still not kicked the habit of trying to fix social problems by banning things.

Half a century ago, the target was true-crime novels and magazines, those filled with “pictures or stories of criminal deeds of bloodshed, lust, or crime,” in the words of a New York statute that made it a crime to print, sell or even to give away such matter. Nineteen other states had similar laws. The Supreme Court declared in 1948 that the statutes violated the First Amendment’s guarantee of free speech, prompting a passionate dissent from Justice Felix Frankfurter. The former Harvard Law School professor complained that the majority was thwarting the states’ effort “to solve what is perhaps the most persistent, intractable, elusive and demanding of all problems in society — the problem of crime and, more particularly, of its prevention.”

The notion that reading a novel or magazine could turn a decent citizen into a criminal — or that banning one could make the streets safer — sounds preposterous today. So does the more recent effort by Nassau County, N.Y., to ban the sale to minors of trading cards depicting notorious criminals, an ordinance that the federal appeals court in New York declared unconstitutional in 1997.

The latest threat to public safety and morals, evidently, is the video game. Bans on the sale or rental of violent video games to minors are popping up all over the country — eight states so far, along with several local laws. Every one that has been challenged in court has been declared unconstitutional.

So it was baffling this week to find the Supreme Court weighing in where it doesn’t appear to be needed. The court typically takes up only those questions that have produced contradictory rulings in the lower courts; a “conflict in the circuits” is the primary marker of a case the justices deem worthy of their attention. Yet the justices have agreed to hear California’s appeal of a ruling by the United States Court of Appeals for the Ninth Circuit that struck down a state law imposing a fine of up to $1,000 for the sale or rental of a “violent video game” to a person under the age of 18. The 2005 statute defines “violent video game” as one that “appeals to a deviant or morbid interest of minors;” offends community standards; and lacks “serious literary, artistic, political, or scientific value for minors.”

This definition mirrors the way the Supreme Court defines obscenity, a category of expression deemed to lack First Amendment protection. But obscenity, as a legal category, always has a sexual component. California is asking the Supreme Court for a new carve-out from the First Amendment, for depictions of violence when made available to minors. The state “is asking us to boldly go where no court has ever gone before,” the Ninth Circuit panel observed.

Maybe the Supreme Court accepted the case, Schwarzenegger v. Entertainment Merchants Association, simply in order to kill the state’s stunningly broad theory in the cradle. The Roberts court has been highly protective of free speech (too much so, according to critics of the recent campaign finance decision, Citizens United v. Federal Election Commission, which invalidated limits on corporate political speech). And just last week, in United States v. Stevens, the court voted 8 to 1 on First Amendment grounds to strike down a federal law that criminalized “crush videos” and other commercial depictions of animal cruelty.

Or maybe the justices want to spare other courts the need to keep reviewing and declaring unconstitutional an endless assortment of violent-video bans. If so, they could hardly do better than simply to adopt the opinion that Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in 2001, invalidating an Indianapolis violent-video ordinance. It’s hard to top the Odyssey or the Divine Comedy for gruesome depictions of torture and mayhem, Judge Posner said, adding that shielding modern children from violent imagery “would leave them unequipped to cope with the world as we know it.”

Whatever its motive, the Supreme Court’s intervention at this point seems so gratuitous that I find it hard to shake the concern that some justices may actually think that social engineering of this sort may actually do some good. If so, let’s hope that the history-minded conservatives check their history before signing on to this latest fad.

Correction: In preparing my column on Tuesday, on Arizona’s new immigration law, I downloaded the text of S.B. 1070 from the State Legislature’s Web site. But it turned out not to be the version that Gov. Jan Brewer signed into law. The version she signed omitted the trespassing section I referred to. I regret the error. My belief that the law is morally and legally problematic is unchanged.

Linda Greenhouse, a columnist for nytimes.com is the former Supreme Court correspondent for The Times. She teaches at Yale Law School.