It won't surprise long-time readers to learn that I approve of Justice Scalia's majority opinion in Brown v. Entertainment Merchant's Association, which struck down California's ban on the sale of violent videogames to minors. The opinion is more or less mandated by United States v. Stevens, another case we cheered.
So I won't dwell (other than to applaud it briefly) on the majority's holding that minors do have First Amendment rights, nor on the cynicism of California's attempt to end-run the First Amendment by claiming that all speech may be regulated in the name of protecting children.
I want to dwell on the concurring opinion of Justice Samuel Alito, which shows the danger posed by statutes such as California's Violent Videogame Act, and of judges who believe their opinions as art critics ought to be the law of the land. This passage:
It is certainly true, as the Court notes, that “ ‘[l]iterature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ” Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)). But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads thepassage in Crime and Punishment in which Raskolni- kov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hearsthe thud of the axe hitting her head and her cry of pain;who sees her split skull and feels the sensation of blood onhis face and hands. For most people, the two experiences will not be the same.
illustrates the problem perfectly.
For those who haven't read it, spoilers follow:

