You might not have believed it from the rhetoric, but last year conservatism got to do something that it rarely gets the opportunity to do: defend art.

In Brown v. Entertainment Merchants Association, the Supreme Court held that video games were protected speech under the First Amendment. Brown concerned the legality of a California statute prohibiting the sale of “violent video game[s]” to minors. This California statute used the rather vague three prong obscenity test from Miller v. California in order to determine whether or not a video game was a “violent video game” or not.

In effect, this vague test granted a large degree of subjectivity (and thus power) to California in determining what was and was not a “violent video game.”

Because numerous game publishers and members of the games industry feared the effects of this statute, the Entertainment Merchants’ Association (EMA) sued California, claiming that, among other things, the California statute was unconstitutionally broad, that the statute relied on questionable “proof” regarding video games’ effect on children, and on the basis that there were less restrictive means available to protect children from violent video games. The Supreme Court, per Justice Scalia, ultimately agreed with the EMA, finding that video games were protected speech and that there was little evidence linking videogames and the harmful psychological effects that the California legislature alleged to exist.

Needless to say, there’s a lot for conservatives to love about Brown v. EMA. Not only did the Supreme Court protect video games as being essentially the same as other forms of art, but they did so in a way that roundly criticized state paternalism.

But there’s something even better about the Brown holding: it showed how small government ideals can protect art.

The textbook liberal position on the statute in Brown—that it was necessary to “protect” children from harmful and psychologically manipulative violent videogames—is a position that hurts art because it implies that the state should be involved in the evaluation and classification of art. In contrast, the conservative view approving of Brown—which might be characterized as a sort of “let me buy what I want” approach—protects the ability of game developers to express themselves without the threat of state regulation or censorship, even if what they express is morally reprehensible.

Thus, while allegedly pro-art liberals like Hillary Clinton often find themselves advocating for the legislative classification and compartmentalization of art in order to “protect” children, conservatives get to defend the merit of art unconstrained by the whim and emotional sensitivities of legislative bodies.

Of course, beyond consistency, there are very good reasons why conservatives advocate small government ideals in the context of the video game industry: as with many other business sectors, big government has the potential to seriously harm the video game industry.

It is fairly obvious why legislative bodies cannot be trusted to evaluate videogames: few government officials can be trusted to evaluate the psychological effects of violence or sexual content, let alone in a way that would give a principled distinction between different games. For example, who could possibly tell if Call of Duty: Modern Warfare 3 should be considered to be more violent than Dead Space 2? Does the attempted realism of the former matter? Should a horror motif be considered more psychologically damaging than a military motif? Is sexual content more or less harmful than violent content? Such questions would lead to the creation of informal standards, which would lead to rulemaking, which would lead to more scrutiny—and ultimately more unnecessary and artless bureaucracy.

Germany is a phenomenal example of how this sort of bureaucracy can harm video games and those who make and enjoy them. German law criminalizes the dissemination (including the sale of even one copy) of games that feature “cruel violence on humans or human-looking characters.” Germany also criminalizes the sale of games with symbols of “unconstitutional organizations,” meaning that swastikas displayed in historical games are also prohibited. Those who violate either of these laws can face up to a year in prison.

As of the date of this article, Germany has banned a substantial number of games, including Left 4 Dead 2, Dead Rising, and Silent Hill: Homecoming. While German gamers are largely undeterred by these prohibitions (the Internet is a wonderful thing), these criminal laws have discouraged many game developers from translating their games into German and from marketing in Germany.

This is, of course, not to say that all videogames deserve to be considered art or even deserve to be purchased. Few conservatives want five-year-olds to play Grand Theft Auto, and very few would argue that infamously bad games, like Star Wars: The Old Republic (also known as “T.O.R.tanic”), are art. But this same dynamic applies to all art: no five-year-old should (even if they could) read Naked Lunch, nor should anyone consider the novelization of the Smurfs movie to be “art.” Nevertheless, small government ideals simply cede judgments regarding the quality of art and media to the public, leaving the determination of appropriateness or quality to the purchaser.

Brown thus shows that small government ideals can advance the arts just as much, if not more, as they do business. Small government ideals are not merely a tool to perpetuate financial strength—rather, they also serve the interests of those who often toe the line between what society likes and what society hates, and they prevent legislators and voters from voting away art that may shock, offend, or disgust. As the Supreme Court seems to understand, there are some topics that the government is simply ill-equipped to judge—and video games are one of those topics.

Kirk Sigmon is a graduate student in the Law School. He can be reached at kas468@cornell.edu.