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But Justice Breyer's logic could lead in the opposite direction: instead of saying the court should be more accepting of bans on violent speech, it could mean that to be consistent, the court should be more skeptical about bans on sexual images. (The court's tougher line on sex parallels the movie industry's voluntary ratings system, which is much quicker to give a rare NC-17 rating for sex than for violence but the industry has not done much to explain its double standard, either.)
Is the court more accepting of limits on sexual images because they are inherently more offensive than violent images? As Breyer asks, do we really believe that a game that allows a child to torture and kill a woman becomes offensive only when she is showing her breasts?
Is it because sexual images are more harmful to young people than violent images? Supporters of the California law submitted research showing that violent video games may well be making young people more aggressive and that they can cause "long-term harmful outcomes." Is the evidence of harm from exposure to sexual imagery stronger? (Child-pornography laws are another matter entirely; the harm they aim at is much clearer.)
Even if the court's ruling in Brown v. Entertainment Merchants Association does not make it abandon its approach to sexual speech and images, it might cause the court to rethink it.
Also on Monday, the court announced that it would hear arguments in a challenge to the FCC's indecency rules for broadcast television, including its heavy fines for airing "fleeting expletives." The FCC has been fine-happy in the past: it imposed a $550,000 penalty on CBS for the "wardrobe malfunction" during the 2004 Super Bowl halftime show that revealed Janet Jackson's breast. The lower courts have ruled against the FCC, but the Supreme Court reversed them the last time in this case and may well again.
It may be that the First Amendment prevents California from stopping children from buying video games in which they can decapitate schoolgirls and torture women. It may also be that it allows the FCC to impose heavy fines on television stations that air four-letter words and other "indecent" speech.
But if the court is going to continue to act as if the nation were the Wild West when it comes to violence and Puritan New England when it comes to sex, it should do more as Justice Breyer rightly suggested to explain why.
Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, usually appears every Monday.