Antonin Scalia

'What James Madison Thought About Video Games'


Today the Supreme Court heard arguments for and against California's ban on selling "offensively violent" video games to anyone under 18. Defending the law, Gov. Arnold Schwarzenegger (pictured on the right) is asking the Court to create a new exception to the First Amendment for violent material distributed to minors. The Court's 8-to-1 decision in U.S. v. Stevens, the April 2010 decision in which it declined to strip constitutional protection from depictions of animal cruelty, suggests it is not very receptive to such arguments. But since video game laws like California's have been overturned by every federal appeals court that has considered them, the decision to review this case indicates that at least four justices are inclined to go the other way. Judging from today's questions, those justices probably include Stephen Breyer, John Roberts, and Samuel Alito (the sole dissenter in Stevens):

Breyer: Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a State has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?…

Roberts: We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down….

Alito: We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. It is totally different from [print]….One of these video games is promoted [with the ad copy], "What's black and white and red all over? Perhaps the answer could include disposing of your enemies in a meat grinder." Now, reading that is one thing. Seeing it graphically portrayed [is another].

On the bright side, several justices made the point that there is no constitutional basis for distinguishing between violence in video games and violence in other media:

Antonin Scalia: Some of the Grimm's fairy tales are quite grim…Are they okay? Are you going to ban them, too?

California Deputy Attorney General Zackery Morazzini: Not at all, Your Honor.

Ruth Bader Ginsburg: What's the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?…

Elena Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?…

Sonia Sotomayor: One of the studies…says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?…

Morazzini: Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to. We believe the level of violence in these video games—

Scalia: That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument….

Sotomayor: Could you get rid of rap music?

Kagan (who as solicitor general staked out an unnecessarily broad pro-censorship position in Stevens) also pressed Morazzini on the question of which video games are covered by the law's vague definition of material reserved for adults. As the trade groups challenging the law note (PDF), the state has refused to clarify that point. Even with respect to Postal 2, its prime example of an egregiously violent game, the state would only say that it might be covered by the law. Under Kagan's questioning, Morazzini conceded that we won't know which games are covered until juries tell us—i.e., after people are prosecuted for violating the law.

But Scalia, who has a largely undeserved reputation for hostility to civil liberties, emerges as the justice most skeptical of California's constitutional argument:

I am concerned with the vagueness, but I am [also] concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.

You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment….What's next after violence? Drinking? Smoking?

Alito, who clearly is leaning in the other direction, mocked Scalia's originalist concerns, saying, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?"

The transcript of the oral arguments is here (PDF). Previous coverage of the case here and here. Look for my column about it tomorrow.

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  1. Justice Sotomayor, cartoons do not depart from the established norms to a level of violence to which children have been historically exposed to.


    How many of us laughed as Tom’s face got smashed flat with a cast iron skillet?

    1. Oh damn you stole what I was going to quote. What a load that line is.

    2. When Odysseus put out Polyphemus’ eye with a stick, or threw a spear through all of Penelope’s suitors, it reminded me of all the times that I as a child had blown out a cyclops’ eye or drove a stake through someone’s chest. Good times.

      1. Look, Epi, just because you spent your time trying to be like Sarah Michelle Gellar doesn’t mean the other kids do, okay? Your pathologies are abnormal, even around here.

        1. But I just had my cheerleader outfit dry cleaned! And Donald Sutherland promised me!

          1. “”And Donald Sutherland promised me!””

            He’s just trying to make Elliott Gould jealous

  2. What did James Madison think of dousing Justice Alito in gasoline and setting him on fire?

    They didn’t have gasoline back then, so we can’t know one way or the other.

  3. Interesting. Obama’s picks seem better on this one than Bush’s.

    1. And even more interesting is that the supposed authoritarian justice who despises the very idea of the free speech is all gung ho to tell those statist fuckers in CA to go to hell.

    2. Well, yeah, it was known at confirmation that Roberts and Alito were no Scalia and Thomas when it came to formalism and taking rights seriously.

      As far as I could tell during confirmation hearings, Democrats really hate the idea of Republican justices that take rights seriously and engage in formalism, because that means that they’re likely to reach “radical” decisions about things being unconstitutional instead of being pragmatic.

      And for most Democrats, civil liberties lose out to expanding the power of government 9 times out of 10.

  4. And you know what?

    Fuck you, Breyer, that’s NOT what they’re saying.

    They’re saying that if YOU give your worthless fucking spawn money to spend, that makes it MY fucking problem to make sure I don’t sell them the wrong game. My problem, up to and including criminal prosecution.

    How about this? I sell video games to people with money. Don’t want your kid to buy a particular game? Fuck you, don’t give them any money. Or YOU fucking watch them, because it’s NOT. MY. FUCKING. PROBLEM.

    1. I had a discussion at lunch over this which started with “Well, some parents might let their kids…”

      I answered, so what you’re saying is that some parents might be shitty parents and in this case, you’re presuming that the state can exercise better judgment over a child than can its own parents, in terms of what it should view and the values imputed. What you’re really saying is that these people are unfit as parents and if so, why aren’t we removing these children from these people and sterilizing them so they can’t have any additional children that they are so clearly unfit to raise?

      1. Beyond that, it is completely inappropriate to talk about the relationship between parent and minor when the law in question regulates the relationship between the shopkeeper and the public.

        Breyer is saying, “Hey, this isn’t so bad, it’s not restraining liberty, if parents want their kids to have a game they can buy it themselves!”

        Um, no, douche. We’re talking about a law that puts shopkeepers in a position of jeopardy that includes criminal charges. The restraint on their liberty and the chilling effect on their speech is all that is relevant to the discussion, and not some hypothetical workaround some asshole parent can undertake.

        1. what about the sale of tobacco or alcohol to minors?

          1. A parent may go to jail for giving their kids those.

            1. well, don’t come around my house for passover.

          2. There is quite a bit of evidence as to the harm of smoking and alcohol to developing children – much of it on very solid scientific ground.

            The attempted regulators’ wishful causality regarding video game violence actually affecting child behavior is not backed up scientifically – especially since the justices rightly pointed out that it is only one ‘form’ of said violence which is seen as detrimental.

            This is so obviously a money grab (video games are quite a bit more profitable than Hollywood) that it’s amazing the discussion is even taking place.

          3. what about the sale of tobacco or alcohol to minors?

            You know what? If I want to inject fucking heroin into my kid’s fucking eyeballs it’s none of your fucking business. Is that so hard to fucking understand? They’re my fucking kids, not yours.

            What pisses me off the most is that this post pushed me off the edge.

            … Hobbit

            1. Really? And could you murder your kids, too? Afterall, they’re your kids.

            2. Not only was this atrociously stupid, it didn’t even answer the question. The question was about the point of sale, not the end user.

      2. We’re having that same water-cooler debate about Initiative 1100, the measure that ends the WA state monopoly on liquor sales.

        Dumbass drooling sheep: “Baa-aaa-aa, but some teens might be able to get liquor at convenience stores.”

        Me: “That’s what Darwin awards are for. You will never legislate away stupid people, either stupid kids or their crappy, indifferent parents. Something tells me that if they want to drink that bad, the fact that their only retail outlet for liquor is a state-run store is not really going to be much of a deterrent.”

        And if the stupid teens drive drunk and wrap Mommy’s car around a tree before they can get a chance to reproduce and pass on their moron DNA, I gotta say, my givafuck’s broke.

        Of course, I’m all for that compulsory sterilization idea.

        People who choose to have children get to worry about what those children are consuming. Either be willing to take full responsibility for what your kids consume, or don’t have kids. This POS should not even be wasting the court’s time.

        1. what about the rest of the public out on the road who doesn’t want to be hit by a crazy drunk teen driving his mommy’s car? I don’t think I should be taken out of the genepool because of some knuckleheaded teen.

          1. Then ban transportation so you’ll be permanently safe.

            Whatever you do, don’t actually seek accountability for those making poor decisions – there’s no money in that, as most of them are losers.

            I fail to see your solution to the problem of crappy choices, since many road accidents do not involve alcohol.

            Perhaps no one under 21 should own a cell phone?

          2. You’re also under the impression that kids DON’T get alcohol because the state runs sales.

            try again, fucktard.

            1. kinda like how people don’t murder each other because murder is illegal?

  5. Those Three Stooges were kind of violent. You can really hurt somebody poking them in the eyes like that!

    1. Not if you block it with an open hand.

    2. Not if you block it with an open hand.

  6. “Did he enjoy them?”

    I’ve got zombie James Madison in back in my shed. We play all the time. He loves that shit.

    1. Zombie Madison:

      “Verily, I doth enjoy planting mine musket ball betwixt that ghoulish character’s eyes.”

  7. And it was always understood that the freedom of speech did not include obscenity.

    No it wasn’t. And still isn’t.

    1. Yeah, Scalia seems pretty certain on that one.

      1. He knows it when he sees it.

    2. Well, originally the First Amendment was not considered applicable to state laws, and the a federal government restricted to the enumerated powers in Article I Section 8 would not even have any ability to regulate obscenity.

      I guess we could look at whether there were laws restricting obscene speech in the District of Columbia or on military bases, or in states that had similar guarantees of free speech in their constitutions at the time of ratification.

  8. There is so much to hate here I can’t contain it all to one post.

    All of this “It’s a new medium” shit really pisses me off.

    Alito is basically directly saying that speech shouldn’t be protected if it’s persuasive. Free speech is all well and good for print, because [to Alito] who the fuck ever is persuaded by print? But video games are just so compelling a medium that they can’t be free.

    Fuck you, asshole. What a piece of shit. Who put this fucker on the court? One more thing to hate W over.

    “I only support free speech that is completely ineffective. If speech seems to me like it might actually be effective, PUT THOSE FUCKERS IN JAIL.” Sam Alito.

    1. Man, that good mood from the morning election thread evaporated in a hurry, didn’t it?

      1. It’s coming back.

        I just went to Kos and Dem Underground for a while and drank some tears.

        Not too many, mind you. I didn’t want to get started too early and ruin my appetite before the big show. Just a little before-dinner drink to get a little buzz going.

    2. As an avid (though certainly not underage) gamer, I get that the difference is that a video game is an interactive medium and, yes, there is a difference between passively reading about a grisly murder and actively making one happen in the game.

      While the distinction is there, I think it only matters in a sociological sense and not at all in the constitutional sense. After all, humans are innately violent. We didn’t get that way because of games – or movies or books. We got those games, movies and books as a reflection of what we already ARE.

      An exception to the first amendment would essentially delegitimize a large part of the human experience.

      1. If you think reading is passive, you’re a bigger idiot than said justices.

        Were reading passive, interpretation of text would not be.

  9. Freedom of speech should only apply to the spoken and handwritten word, clearly.

    1. those poor deaf people and their sign language! We cannot tolerate those gestures! They could be obscene and most of us would not know!

      1. They didn’t have sign language at the time of the founding of this great, hearing nation.

        1. [seeing-eye dog kicks pebble]

  10. Urp. I just found myself unexpectedly in the middle of a Ginsburg-Sotomayor-Kagan intellectual sandwich. I think I threw up a little.

  11. Scalia, who has a largely undeserved reputation for hostility to civil liberties,

    When I read this, I knew this post didn’t come from Radley.

    Morse v. Frederick
    Hudson v. Michigan “New Police Professionalism”
    Boumediene v. Bush

    1. ‘What James Madison Thought About Video Games’ Jacob Sullum | November 2, 2010

      When I read this, I knew this post didn’t come from Radley.

      1. I like to read who wrote a story after i read the story. It adds to its entertainment value.

        To be honest I think they should post their names at the bottom…like a signature.

    2. I’m pretty sure that Radley knows about:

      Kyllo v. United States, Melendez-Diaz v. Massachusetts, Ring v. Arizona, Apprendi, Booker, Arizona v. Gant, and a bunch of other close decisions with Scalia on the pro-civil liberty side.

  12. “But Scalia, who has a largely undeserved reputation for hostility to civil liberties”

    Apparently “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” no longer counts as a civil liberty?

    1. Not to some folks. Though I guess it goes without saying that guaranteeing the right to own a firearm in the home precludes forbidding owning a firearm on a video screen.

    2. Why, do you disagree with Justice Scalia on Kyllo v. United States, where he wrote the “no thermal imaging search” opinion?

  13. Scalia, having the most children and grandshildren, has probably pimp-slapped a bitch in Grand Theft Auto, while the other justices are still trying to get their frog acorss the road without it getting squashed.

  14. Sonia Sotomayor: One of the studies…says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?…

    Not a statist?

  15. Actually, even Zackery Morazzini doesn’t sound very convinced by his own arguments. It’s just his job.

  16. And it was always understood that the freedom of speech did not include obscenity.

    Just declare violence to be obscene and you should be fine banning video games.

    1. Is obscene violence okay?

      It’s not porn if I shove a chainsaw up there, is it?

  17. As usual, people don’t want to look at what may actually cause/encourage/facilitate violence. Like, maybe, a violent and agressive foreign policy that helps two oppressive regimes target a third:

  18. Well, it’s true that there weren’t any violent video games back when the Constitution was being written. OTOH there were lots of public executions. Folks were being hung, beheaded, drawn and quartered, burned at the stake, pressed to death. But I guess taking kids to see that provided a valuable moral lesson.

    If lawmakers are serious about cracking down on violent games, why not start with hockey?

  19. Does it really matter what any of them have to say outside of Thomas?

    He’s the only one without his head firmly planted in his ass.

    Though I’m not confident, one could argue that Kagan should also get a clean slate because she has no record of note.

    And in this case she sounds pretty good to me.

    1. It would be nice to actually hear (read) Thomas speak. He’s notoriously quiet during hearings

  20. “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

    I can tell you what Madison thought about video games. He thought “In the future there will different stuff that i don’t know about that can change how our government works. I therefor support a position that allows the constitution to be changed through a process. So if the world changes the constitution can change with it.”

    Fuck Alito. He is a piece of shit for not knowing that.

    1. Uh, the “updating” of the first amendment’s speech protections has come about purely by judicial re-interpretation (activism if you will). Not a single later amendment has altered the First.

  21. The line of argument in favor of the ban is stupid on many levels, but the “historical” argument is total bunk. Kids have been “interactively” pretending to kill and maim since the first toy soldiers were fashioned. They may have had to rely on their imagination for filling in the details rather than having a visual aid, but that’s not any better from a psychological point of view. I suspect conjuring up violent fantasies that comes from within is more damaging than having it unfold on a video screen in the outside world.

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