Is There A Categorical First Amendment Exception for Violent Video Games Sold to Minors?
In the 1968 case of Ginsberg v. New York, the Supreme Court rejected a First Amendment challenge to a state law that forbade the sale to minors of certain sexually-themed magazines, even though the material in question would not qualify as “obscene” if it were sold to adults. No matter, the Court said: Although adults would have had a constitutional right to purchase the proscribed material (quaintly described in Justice Brennan’s opinion as “girlie magazines”), the Court reasoned that the interests of both the state itself and of parents (for whom the state was acting as proxy) justified a more restrictive approach to minors. Interestingly, the Court did not say in Ginsberg that laws restricting the sale of sexual material to minors must satisfy the demanding “strict scrutiny” test that is ordinarily applicable to regulations of speech. Instead, the majority opinion found it sufficient that the state’s definition of obscenity with respect to minors was rationally related to its goals.
