Applying Rational Basis Review to the First Amendment?

June 27th, 2011

One of the traits of Lee Optical-style rational basis review is that the Courts can consider facts or conclusions not actually countenanced by the legislature, as long as there was some kind of conceivable reason why the legislature had a rational basis.

Justice Breyer’s First Amendment analysis in Brown v. EMA, which purports to apply “strict scrutiny,” is adopting traits of rational basis review.

In his analysis, Justice Breyer finds the infringement on individual liberty appropriate because “California has substan­tiated its claim of harm with considerably stronger evidence.”

There are many scientific studies that support Califor­nia’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period.

Justice Breyer notes that studies vary, and as a Judge he lacks the ability to say which is right. It is funny he did not deign to mention this infirmity in McDonald or Heller, where he cited numerous empirical studies, which are subject to great debate.

Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have pro­ duced studies of their own in which they reach different conclusions. (I list both sets of research in the appen­ dixes.) I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.

In addition to studies supplied by the parties, and amicus, Justice Breyer attaches a 20 page appendix of peer reviewed articles. Elsewhere I have ranted about the Court relying on statistics provided by amici that were never introduced at the trial level. Justice Breyer did one better. He cited statistics not even submitted by amici, but he gathered himself with the assistance of the Supreme Court Library.

With the assistance of the Supreme Court Library, I have compiled these two appendixes listing peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games. The library conducted a search for relevant articles on the following databases: PsycINFO, PubMed, Academic Search Premier, ArticleFirst (OCLC), and Dialog (files 1, 7, 34, 98, 121, 142, 144, 149). The following search terms were used: “(video* or computer or arcade or online) and (game*) and (attack* or fight* or aggress* or violen* or hostil* or ang* or arous* or prosocial or help* or desens* or empathy).” After eliminating irrelevant matches based on title or abstract, I categorized these articles as either supporting the hypothesis that violent video games are harmful (listed in Appendix A), or not supporting/rejecting the hypothesis that violent video games are harmful (listed in Appendix B).

Justice Scalia bench-slaps Justice Breyer on this front.

JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmful- ness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 15.

Ultimately, these studies–both inside and outside the record–lead Justice Breyer to defer to majority rule.

Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical mat­ ters that are beyond our competence, and even in First Amendment cases. See Holder, 561 U. S., at ___ (slip op., at 28–29) (deferring, while applying strict scrutiny, to the Government’s national security judgments); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195–196 (1997) (deferring, while applying intermediate scrutiny, to the Government’s technological judgments). The majority, in reaching its own, opposite conclusion about the validity of the relevant studies, grants the legislature no deference at all.

These are not “legislative facts” you can take judicial notice of. These are studies—some briefed by amici, some gathered by the Supreme Court library—that the legislature knew nothing about. These facts were never introduced into the record of the legislature. They were never introduced as evidence in the lower court. Giving deference to facts not introduced by the parties involved is typical of rational basis review. This deference is unwarranted here.

If these studies were so important, why weren’t they cited by the parties?

Many, but not all, of these articles were available to the California Legislature or the parties in briefing this case. I list them because they suggest that there is substantial (though controverted) evidence supporting the expert associations of public health professionals that have con­ cluded that violent video games can cause children psycho­ logical harm. See supra, at 15–16. And consequently, these studies help to substantiate the validity of the origi­nal judgment of the California Legislature, as well as that judgment’s continuing validity.

This is akin to rational basis review. Justice Breyer is covering the assess of the legislators who failed to justify their own statute that infringed invidual liberty. He actually went out of his way to find reasons to uphold a law that touches the First Amendment. This is foreign to First Amendment analyses. Justice Holmes would be proud.

Update: On a somewhat related note, today the Court’s Librarian retired. Sadly, she will no longer be able to help Justice Breyer with his extraneous research assignments. I wish her the best of luck!

”The Court also notes today that the Court’s Librarian, Judith Gaskell, has announced her retirement. She will be leaving us before we reconvene in the fall. Ms. Gaskell has served as the Court’s Librarian since 2003. In the earliest years, the Court did not have its own Library. Members of the Court used their own personal collections or borrowed books from the Library of Congress or other sources. Today, the Librarian manages the Court’s splendid collection of more than 500,000 volumes, directs a staff of 28, and provides irreplaceable research in support of our work. The Court thanks you, Ms. Gaskell, for your dedicated service, and we wish you well in your retirement.”