The Supreme Court has always taken depictions of sex far more seriously than violence. SCOTUS: Violence OK. Sex? Maybe

Which bothers you more, sex or violence? And when is the last time you had either?

Sorry, scratch that last one. This is serious stuff. Fabric of society and all that.


In a 7-2 decision, the Supreme Court ruled Monday that video games can be sold to minors no matter how violent the games are. And some video games, like the popular “Mortal Kombat” and “Grand Theft Auto” series, are very violent.

But so are fairy tales, wrote Anthony Scalia, a very conservative justice of the court. “‘Grimm’s Fairy Tales’ … are grim indeed,” he wrote. “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.’”

More importantly, in my opinion, Scalia wrote in his opinion that California, which had banned the sale of violent games to minors, “had not demonstrated any direct causal link between playing violent video games and actual harm to minors.”

You could almost hear the collective gasp from academics and psychologists who have preached just the opposite for decades.

Me, I am with Scalia and the rest of the majority. I have never believed all those studies that claim that playing with toy guns and violent games or watching violent TV shows makes kids more violent.

Such claims bewilder me. I grew up playing with toy guns and have never shot anybody (though I know plenty who deserve it).

And if violent TV shows are supposed to make kids more violent, how come comedies don’t make them more funny?

It is not politically popular to say this, however. Which is why Bill Clinton was so proud when he got Congress to pass a law forcing TV manufacturers to embed “V-Chips” in new televisions. These chips could be programmed to block violent shows, though not the most violent show of all: the nightly news.

Know how to program the V-Chip in your TV? Of course you don’t. And even if you did, your 10-year-old could probably de-program it in a minute flat.

Which brings us to bare, naked, filthy sex.

Wait. How did I get from violence to sex? Because the Supreme Court has always taken depictions of sex far, far more seriously than depictions of violence.

Want to sell minors games in which they blow the heads off cops in eruptions of brain-splattering gore? Be my guest, says the court.

Want to show two people making love? Whoa, there. That’s a different matter.

And it’s a matter the justices have visited many times, even subjecting themselves to the indignity of watching obscene movies (over and over again with only a few popcorn breaks) in their chambers.

The United States was once a country that banned the works of authors like D.H. Lawrence and James Joyce (and seized copies of their works from tourists entering the country). But that changed in 1957, when the high court ruled that material had to appeal to the “prurience” of the average person according to prevailing “community standards” in order to be banned as obscene.

What the heck did that mean? Nobody really knew, though in 1964 Justice Potter Stewart ruled that anything except “hard-core pornography” was protected by the First Amendment.

And what is “hard-core pornography”?

Glad you asked. Because Potter Stewart’s reply entered history: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Some people thought that didn’t sound very legalistic, but it makes perfect sense. There is a difference between the nudity in “The Pawnbroker” and in “Deep Throat,” and most people know it when they see it.

Not satisfied, however, the Supreme Court kept fiddling around until 1973, when it came up with three standards, all of which had to be present to rule something beyond the protection of the First Amendment:

1. The average person, applying contemporary community standards, would find that the work as a whole would appeal to the prurient interest.

2. The work depicts or describes, in a patently offensive way, sexual conduct defined by state law.

3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Which pretty much leaves a hole big enough to drive a semi-trailer through. And this is why the “adult entertainment” industry today is huge, with some claiming it is a $10 billion-to-$14 billion-a-year industry. That is as much as Americans “spend attending professional sporting events, buying music or going out to the movies,” according to a “60 Minutes” report from several years ago.

The computer and video game industry, by no means all of which is adult in content, took in $11.7 billion in 2008, according to the Entertainment Software Association’s annual report.

So it looks like simulated sex and simulated violence are here to stay in America.

And if that bothers you, keep in mind that the real stuff probably gets us in more trouble.

Roger Simon is POLITICO’s chief political columnist.