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.