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The U.S. Supreme Court Grants Video Games First Amendment Protection

The U.S. Supreme Court Grants Video Games First Amendment Protection  (photo)

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Brown v. Entertainment Merchants Association–the landmark case that could’ve changed the way that video games get sold and developed–finally got an opinion handed down today. In the last day of the Supreme Court’s current session, the Justices ruled 7-2 in favor of video games, declaring that interactive entertainment should enjoy the same freedom of expression as books, film and other works of cultural production.

The core issue was the supposed danger of video game violence in titles rated Mature. California politician Leland Yee wrote a bill–later signed into law by the Governator– that would’ve made the sale or rental of such games illegal in the state. But the Ninth Circuit Court of California struck down the law as unconstitutional, saying that it restricted free speech for video games. Things moved to the Supreme Court last year with arguments made in November. Today’s decision marks the probable end of an era where legal recourse could be sought against games’ sensationalized power as evil entertainment. The opinion written by Justice Antonin Scalia says, in part:

And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears.

The quotes in that piece of the opinion come from the landmark Joseph Burstyn, Inc. v. Wilson case, which cemented the medium of film as one deserving First Amenment protections. The Court’s opinion goes on to say that other cultural forms haven’t been cordoned off the way that Yee’s law proposed for video games:

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read–or read to them when they are younger–contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187-189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).

The pro-gamer constituents were worried about Brown v. EMA, thinking that the Supreme Court as a judicial body trapped in amber, so focused on legal precedent and constitutionality that they might be out of touch with modern-day media. But, as seen above, the Supremes’ decision actually called out past instances where categories of creative works were held up as socially dangerous in laying down precedent for their decision. Excerpts from the opinion reference penny dreadfuls, choose-your-own-adventure books and the 1950s comic-book juvenile delinquency witch-hunt driven by Fredric Wertham. So, if the Justices do live in a bubble, it’s at least a porous one.

Reactions from interested parties have run to type. Yee’s office issued a press release saying:

“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” said the law’s author, Senator Leland Yee (D-San Francisco). “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”

On the opposite end of the spectrum is Jennifer Mercurio, VP & General Counsel of the Entertainment Consumers Association. In a statement from the ECA, Mercurio says, “We had hoped that we would see this decision, and it’s been a long time coming. That being said, there will probably be one or two legislators who attempt to test these new parameters, and the ECA will continue to fight for the rights of entertainment consumers.”

Of course, today’s decision doesn’t mean that it’s okay for you to go get seven-year-old Johnny a copy of “Shadows of the Damned.” It just means the ssytems that are already in place–those ESRB ratings on the front of every box and parents’ common sense–work well enough to prevent the collapse of society. This may not be the end of the culture wars as regards video games, but this latest chapter will certainly tilt discussions about video games’ social worth towards the positive.


Final Countdown

The Best Of The Last

Portlandia Goes Out With A Bang

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The end is near. In mere days Portlandia wraps up its final season, and oh what a season it’s been. Lucky for you, you can watch the entire season right now right here and on the IFC app, including this free episode courtesy of Subaru.

But now, let’s take a moment to look back at some of the new classics Fred and Carrie have so thoughtfully bestowed upon us. (We’ll be looking back through tear-blurred eyes, but you do you.)

Couples Dinner

It’s not that being single sucks, it’s that you suck if you’re single.

Cancel it!

A sketch for anyone who has cancelled more appointments than they’ve kept. Which is everyone.

Forgotten America

This one’s a “Serial” killer…everything both right and wrong about true crime podcasts.

Wedding Planners

The only bad wedding is a boring wedding.

Disaster Hut

It’s only the end of the world if your doomsday kit doesn’t include rosé.

Catch up on Portlandia’s final episodes on demand and at


Rev Up

Your Portlandia Personality Test

The New Portlandia Webseries Is Going Your Way

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Carrie and Fred understand that although we have so much in common, we’re each so beautifully unique and different. To help us navigate those differences, Portlandia has found an easy and honest way to embrace our special selves in the form of a progressive new traffic system: a specific lane for every kind of driver. It’s all in honor of the show’s 8th and final season, and it’s all presented by Subaru.

Ready to find out who you really are? Match your personality to a lane and hop on the expressway to self-understanding.

Lane 10: Trucks Piled With Junk

Your junk is falling out of your trunk. Shake a tail light, people — this lane is for you.

Lane 33: Twins

You’re like a Gemini, but waaaay more pedestrian. Maybe you and a friend just wear the same outfits a lot. Who cares, it’s just twinning enough to make you feel special.

Lane 27: Broken Windows

Bad luck follows you around and everyone knows it. Your proverbial seat is always damp from proverbial rain. Is this the universe telling you to swallow your pride? Yes.

Lane 69: Filthy Cars

You’re all about convenience. Getting your car washed while you drive is a no-brainer.

Lane 43: Newly Divorced Singles

It’s been a while since you’ve driven alone, and you don’t know the rules of the road anymore. What’s too fast? What’s too slow? Are you sending the right signals? Don’t worry, the breakdown lane is nearby if you need it.

Still can’t find a lane to match your personality? Check out all the videos here. And see the final season of Portlandia this spring on IFC.


Give Back

Last-Minute Holiday Gift Guide

Hits from the '80s are on repeat all Christmas Eve and Day on IFC.

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GIFs via Giphy, Photos via The Everett Collection

It’s the final countdown to Christmas and thanks to IFC’s movie marathon all Christmas Eve and Christmas Day, you can revel in classic ’80s films AND find inspiration for your last-minute gifts. Here are our recommendations, if you need a head start:

Musical Instrument

Great analog entertainment substitute when you refuse to give your kid the Nintendo Switch they’ve been drooling over.

Breakfast In Bed

Any significant other or child would appreciate these Uncle Buck-approved flapjacks. Just make sure you’re not stuck on clean up duty.

Cocktail Supplies

You’ll need them to get through the holidays.

Dance Lessons

So you can learn to shake-shake-shake (unless you know ghosts willing to lend a hand).

Comfy Clothes

With all the holiday meals, there may be some…embigenning.

Get even more great inspiration all Christmas Eve and Day on IFC, and remember…