In an editorial about a recent Supreme Court argument, the New York Times argues:


If the Supreme Court renders justice in a case it heard this month, Schwarzenegger v. Entertainment Merchants Association, it will strike down a California law barring the sale or rental of violent video games to anyone under 18. That would end a violation of free expression—but not prevent the states from finding other ways to support parents who do not want their children to play violent games.


In other words, the corporations that produce and sell these games have a First Amendment right to do so.  If the state is concerned about the effect this speech has on the community, it must find a way to address those concerns that does not interfere with these rights.


Now let’s rewind to January 21, 2010, when the Times’ editorial page blasted the Supreme Court’s landmark ruling in Citizens United v. FEC.  As the Times described Justice Kennedy’s opinion:


The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that.


For those of us who believe that the First Amendment was designed to protect all speech—and to protect important, influential speech most especially—this contradiction is baffling.  Whatever one’s view on the Schwarzenegger case, it is laughable to suggest that selling video games to children that “graphically depict mutilation, torture, rape and murder” is an act entitled to greater First Amendment protection than distributing political documentaries like the one at issue in Citizens United.  This contradiction is, nonetheless, totally of a piece with the Times’ general view of the First Amendment, which allows political documentaries to be banned while affording the greatest protection to the least meaningful, most inarticulate speech.