'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.