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[Thad]

Today the Supreme Court heard oral arguments in the case to overturn California's law that bans minors from purchasing excessively violent video games.

Things are looking pretty damn good so far; Breyer and Roberts appear to be leaning toward the industry, but the rest of the Justices seem to be rejecting both the idea that games are distinct from other media and the one that violence should be a form of unprotected speech like pornography.

The biggest surprise here is Scalia; he was my pick as the second most likely to side with California (after Alito, who was the sole dissent in Stevens), but he gave 'em hell.  He was far and away the most aggressive against the Deputy AG's arguments.

Full transcript.

Some highlights from the state's arguments:

MR. MORAZZINI:So this morning, California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development -­

JUSTICE SCALIA: What's a deviant -- a deviant, violent video game? As opposed to what? A normal violent video game?

MR. MORAZZINI: Yes, Your Honor. Deviant would be departing from established norms.

JUSTICE SCALIA: There are established norms of violence?

[...]

JUSTICE SOTOMAYOR: One of the studies, the Anderson study, 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?

[...]

JUSTICE 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.

[...]

JUSTICE ALITO: Isn't the average person likely to think that what's appropriate for a 17-year-old may not be appropriate for a 10-year-old or an 8-year-old?

[...]

JUSTICE KAGAN: Mr. Morazzini, could I take you back to Justice Scalia's original question, which was what counts as deviant violence or morbid violence. Because I read your briefs all the way through and the only thing that I found you said that was clearly covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games?

There are more gems in the second half, including Kagan asking if Mortal Kombat would be banned under the law -- because their clerks love it -- and the lawyer dodging the question and going back to Postal 2 because that is the only video game that the proponents of the law are aware of, and Sotomayor asking if the "image of a human" language in the law applied to Vulcans.

Oh, and Alito jokes about strict constructionism:

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

All in all, it's looking pretty good; I'm calling Roberts and Breyer for California, Thomas, Scalia, Sotomayor, Ginsburg, Kennedy, and Kagan for EMA, and Alito as a bit of a wildcard -- he seems to side with EMA in his line of questioning, but I'm still thinking about that whole "sole dissent in Stevens" thing.  Then again, the difference between this and Stevens was in the latter, actual animals were unquestionably being harmed, whereas this is a case where children are only HYPOTHETICALLY being harmed.

[Büge]

The WGA wishes they could write dialogue that zippy.

[Thad]

Hell, remember when we talked about dramatizing the Thompson disbarment trial?  We could totally dramatize this shit.


Highlights from the back half:

JUSTICE SCALIA: Not too many 13-year-olds walk in with a $50 bill, do they?

Which is pretty much what Frank Zappa said when the Senate tried to restrict music sales to minors, and an argument I've been using myself throughout this debate.

JUSTICE BREYER: You are away from the common sense. If you are going back to the common sense of it, what common sense is there in having a state of the law that a State can forbid and says to the parent that the child, the 13-year-old, cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as I have described? I have tried to take as bad a one as I could think of, gratuitous torture of children. Okay. Now, you can't buy a naked woman, but you can go and buy that, you say to the 13-year-old. Now, what sense is there to that?

I believe Breyer's reasoning is sound but unfortunately he's relying on settled law in Ginsberg -- if A is already banned, shouldn't B be banned too?  Of course, the contrapositive of that is, if B shouldn't be banned, A shouldn't be either, but then we run up against overturning precedent, which the Court is typically reluctant to do.

They knock the EMA lawyer around a good bit on his assertion that NO law restricting children's access to violent content could pass constitutional muster.  I'm afraid we're likely to see a narrow ruling here and more legislation to come.

I'll go over the rebuttals later.

[Thad]

Mortal Kombat and Vulcans (I'm going to take the liberty of correcting some typos in the transcript):

JUSTICE KAGAN: You think Mortal Kombat is prohibited by this statute?

MR. MORAZZINI: I believe it's a candidate, Your Honor, but I haven't played the game and been exposed to it sufficiently to judge for myself.

JUSTICE KAGAN: It's a candidate, meaning, yes, a reasonable jury could find that Mortal Kombat, which is an iconic game, which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing.

JUSTICE SCALIA: I don't know what she's talking about.

MR. MORAZZINI: Justice Kagan, by candidate, I meant that the video game industry should look at it, should take a long look at it. But I don't know off the top of my head. I'm willing to state right here in open court that the video game Postal II, yes, would be covered by this act. I'm willing to guess that games we describe in our brief such as MadWorld would be covered by the act. I think the video game industry --

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

MR. MORAZZINI: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.

JUSTICE SOTOMAYOR: So if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?

MR. MORAZZINI: Under the act, yes, because California's concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence -- violent depictions against human beings.

[François]

Mr. Morazzini: Well, Justice Breyer, I think, in going back to Justice Scalia's question, I find it hard to believe and I know of no historical evidence that suggests that our Founding Fathers in enacting the First Amendment intended to guarantee video game retailers a First Amendment right --

Wow. That's... wow. Isn't there a law somewhere that forces you to have "scumbag" tattooed on your forehead when you use the argument that your Founding Fathers didn't specifically extend free speech to a not-yet-invented form of media?

[Büge]

JUSTICE SOTOMAYOR: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?

MR. MORAZZINI: No, it wouldn't, Your Honor, because the act is only directed towards the range of options that are able to be inflicted on a human being.

JUSTICE SOTOMAYOR: So if the video producer says this is not a human being, it's an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?

MR. MORAZZINI: Under the act, yes, because California's concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence -- violent depictions against human beings.

This is exactly why the Cylons in Battlestar Galactica were originally written as robots.

[Mongrel]

This is gonna be such gas.

[Rico]

This is exactly why the Cylons in Battlestar Galactica were originally written as robots.

Timm and Dini similarly talk about broadcast standards and practices and all the crazy shit they did to the HARDAC robots in the His Silicon Soul commentary.

[Bal]

SAMURAI JACK

[Thad]

And let's not forget TMNT 2003 getting away with the decapitation shot in Return to New York -- by making the Shredder an Utrom in a robot exoskeleton.

[Pacobird]

These laws get passed every few years and the circuits or state SCs always strike them down as unconstitutionally vague; this is one of those no-brainer issues the SCotUS usually says (very politely) is a waste of time and only grants cert on when jackasses will not shut up about it.

The SCotUS said illustrations/depictions of kiddie porn were okay; I think GTA's going to be just fine.

[Doom]

I found the Globetrotter theme to be a nice addition to the usual court proceedings.

[Royal☭]

And let's not forget TMNT 2003 getting away with the decapitation shot in Return to New York -- by making the Shredder an Utrom in a robot exoskeleton.

Or howabout when Morbius the Vampire sucked "plasma" through little slits in his fingertips.

[Thad]

Actually, contrary to popular belief, Morbius was NOT an end run around the Code's vampire ban.

The clause mentioned in the previous legend that lifted the ban on vampires occurred early in 1971, February 1st, to be precise – Morbius did not appear until later in the year (cover date Octobr 1971).

Roy Thomas has said a few times over the years that Morbius was specifically a response to the changed Comics Code. The Living Vampire angle was just to make him unique and more heroic-sounding.

[Royal☭]

I actually meant in the '90s cartoon.  He was changed from a regular vampire into some weird plasmid sucking hand monster to comply with censorship from Fox.

Fundamental changes were enforced upon his depiction by Fox, who imposed a heavy level of censorship on the series. These changes include being unable to bite anyone, despite having fangs and clearly being a vampire. Instead he was rendered with suckers on his palms to drain his victims, similar to another "Living Vampire" from the Marvel Universe, Bloodscream. The word 'blood' was not allowed to be used in any capacity, and was replaced with 'plasma'.

[Büge]

Spider-Man was not allowed to harm any pigeons when he landed on rooftops.

[Ted Belmont]

I like this one better:

Spider-Man was not allowed to hit anyone with his fist

[Thad]

Good guys win.

Dissenting: Breyer and, surprisingly, Thomas.



(Retitling thread as the case itself has been renamed for California's current governor.)

EDIT: Opinion.  I'll skim it and post any good bits I find.


EDIT 2: Scalia hammers Thomas in a footnote (pp 9-10):

Justice Thomas ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents' consent.  He cites no case, state or federal, supporting this view, and to our knowledge there is none.  Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say.  This is true enough.  And it perhaps follows from this that the state has the power to enforce parental prohibitions--to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend.  But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents' prior consent.  The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents' prior written consent--even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors.  And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents' prior consent.  Our point is not, as Justice Thomas believes [citation], merely that such laws are "undesirable."  They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people.  Such laws do not enforce parental authority over children's speech and religion; they impose governmental authority, subject only to a parental veto.  In the absence of any precedent for state control, uninvited by the parents, over a child's speech and religion (Justice Thomas cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, these laws must be unconstitutional.  This argument is not, as Justice Thomas asserts, "circular," ibid.  It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

EDIT 3: More fun (pp 12-13):

California claims that video games present special problems because they are "interactive," in that the player participates in the violent action on screen and determines its outcome.  The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.  [Citation]  As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind.  As Judge Posner has observed, all literature is interactive.  "[T]he better it is, the more interactive.  Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own."  [Citation]

Justice Alito has done considerable independent research to identify [citation] video games in which "the violence is astounding," [citation].  "Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools." Ibid.  Justice Alito recounts all these disgusting video games in order to disgust us--but disgust is not a valid basis for restricting expression.  And the same is true of Justice Alito's description [citation] of those video games he has discovered that have a racial or ethnic motive for their violence--"'ethnic cleansing' [of] . . . African Americans, Latinos, or Jews."  To what end does he relate this?  Does it somehow increase the "aggressiveness" that California wishes to suppress?  Who knows?  But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message.  Thus, ironically, Justice Alito's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech--whether it be violence, or gore, or racism--and not its objective effects, may be the real reason for governmental proscription.

Curious just what the fuck games Alito is talking about, but the GP comments section suggests it's the usual suspects of Custer's Revenge, RapeLay, and SCMRPG.

While the standard kvetching applies -- those games aren't even sold at retail! -- the fact that Alito cited them and still sided with the majority is probably a good thing, inasmuch as he's saying that even if they WERE sold at retail that wouldn't be justification for the law.

[Thad]

More, taking apart some of the studies suggesting a link between violent games and aggression (pp 15-16):

One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in "explo_e" with a "d" (so that it reads "explode") than with an "r" ("explore").  [Citation]  The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

Even taking for granted Dr. Anderson's conclusions that violent video games produce some effect on children's feelings of aggression, those effects are both small and indistinguishable from effects produced by other media.  In his testimony in a similar lawsuit, Dr. Anderson admitted that the "effect sizes" of children's exposure to violent video games are "about the same" as that produced by their exposure to violence on television.  [Citation]  And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner [citation], or when they play video games like Sonic the Hedgehog that are rated "E" (appropriate for all ages) [citation], or even when they "vie[w] a picture of a gun" [citation].

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns.  The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it.  Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.  See City of Ladue v. Gilleo [...]; Florida Star v. B. J. F. [...].  Here, California has singled out the purveyors of video games for disfavored treatment--at least when compared to booksellers, cartoonists, and movie producers--and has given no persuasive reason why.

Justice Alito is mistaken in thinking that we fail to take account of "new and rapidly evolving technology," [citation].  The studies in question pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified.  Nor is Justice Alito correct in attributing to us the view that "violent video games really present no serious problem." [citation]  Perhaps they do present a problem, and perhaps none of us would allow our own children to play them.  But there are all sorts of "problems"--some of them surely more serious than this one--that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie [...]), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States [...]), or the problem of encouraging disrespect for the Nation's flag (Texas v. Johnson [...]).

Supreme Court cases are, of course, one of the few instances in which argument by analogy, hypothetical, slippery slope, and comparison to Nazis are all entirely valid forms of discussion.