Writing for the majority, Justice Antonin Scalia held that California’s law prohibiting the sale of violent video games to minors violated the First Amendment. Scalia noted that while it is difficult to distinguish politics and entertainment, video games are a protected form of speech because “like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices […] and through features distinctive to the medium.” The state argued that the interactive element of video games set them apart from other forms of speech, but Scalia pointed out the long history of choose-your-own-adventure stories to show that “all literature is interactive.”

California’s law used a variant of the Miller test, which was originally established to judge obscenity. While obscene speech, which has a long history of regulation and may be proscribed, may be regulated, Scalia asserted that the obscenity exemption to the First Amendment does not cover whatever a legislature finds shocking, only depictions of sexual conduct. He reaffirmed that content restrictions are offensive to free speech and cited the Court’s decision in Stevens v. United States (2010) in which they held that new categories of unprotected speech cannot be added to the list by a legislature simply because they determined the speech to be too harmful. Scalia explained that “without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the ‘judgment [of] the American people,’ embodied in the First Amendment, ‘that the benefits of its restrictions on the Government outweigh the costs.’”

Scalia argued that California would have the justification for this law if history reflected a tradition of restricting the access of children to violent content, but it does not. Scalia did however note that traditional fairy tales such as Hansel & Gretel and Cinderella contain content similar to that which California’s bill appears to be against. He wrote that such stories have “no shortage of gore” but have long been accepted by the community as appropriate for children. Scalia explained the disparity, writing, “California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why.”

While Scalia acknowledged the government’s legitimate authority to protect children from harm, he stated that they are still entitled to First Amendment protection. He wrote that in narrow and well-defined circumstances, the government has the power to prohibit certain protected materials from being distributed to kids, but “that does not include a free-floating power to restrict the ideas to which children may be exposed.” Just because a legislature determines speech to be “unsuitable” for children does not mean they have the constitutional authority to ban their access to it. The legislature must have a narrowly-tailored and substantial interest in order to override the First Amendment protection of speech. Finding neither, Scalia held that California’s law banning the sale of video games to minors was unconstitutional.