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Nov 05, 2010



So I haven't read the full transcript yet, but I'm still scratching my head as to why they granted cert in this one. The summaries of the oral arguments make it pretty clear that they are skeptical of the California statute, to say the least, and that they don't want to make "digital violence" a separate category that trumps the first amendment.

So why grant cert? Usually they grant cert with the intent of reversing the lower court or resolving a split in the doctrine. Yet the Ninth Circuit struck down the law and there's no circuit split here and the doctrine isn't really in significant disarray. Also, they just decided in a recent case that "crush videos" are protected speech. So what's up?

What I'm hoping is that they want a chance to update the 1st amendment doctrine to make it clear that video games are protected as speech. We don't have a Supreme Court ruling that says that yet, and maybe they think an opinion to that effect is overdue.

That's the most optimistic reading.


Okay, now I've read it. My favorite bits:

This part reminds me of Dmitri's thesis:

MR. SMITH: We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals. It started with the crime novels of the late 19th century, which produced this raft of legislation which was never enforced. It started with comic books and movies in the 1950s. There were hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books, and there was enormous pressure on the industry. They self -- they self-censored. We had television. We have rock lyrics. We have the Internet.

Yep -- well done.

I love this bit where Justice Scalia struggles with mimesis!

JUSTICE SCALIA: It's not speech. You were saying, you just can't let the kid maim -- maim, kill, or set on fire.

MR. SMITH: I'm sorry? [ed. I love that response!]

JUSTICE SCALIA: What the law would be directed at is not the plot, not the video game itself, but the child's act of committing murder, maiming, and so forth.

MR. SMITH: Well, the events in a video game and the game. I would submit that both are completely protected by the First Amendment. Just as a person -­

JUSTICE SCALIA: The child is speaking to the game?

MR. SMITH: No. The child is helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps to portray what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That's what makes them different and in many ways wonderful.

Awesome -- well done again, Mr. Smith.

And here's a *great* question from Sotomayor (I wonder if she knows about Germany's "green blood" rules?):

JUSTICE SOTOMAYOR: Would a video game that 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.

And then Sotomayor pushes it one step further:

JUSTICE SOTOMAYOR: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily.

MR. MORAZZINI: I would think so. The intent of the law is to limit minors' access to those games.

So extreme violence to Vulcans = okay
Extreme violence to regenerating humans = bad

I think Sotomayor won that point.

Still, after reading the transcript, I'm not quite as confident that this opinion will be the ideal result, from my perspective.


Had they gone a step further, they would have recognized that violence against Klingons would be laudable and worthy of subsidy and encouragement.


The subject has bubbled up in several states over the last few years, and every attempt to restrict video games has been shot down as unconstitutional. I believe SCOTUS took this case because a ruling at the national level will keep brazen AGs and their ilk in check. It should also help prevent the waste of time and energy on further attempts at fatally flawed video game legislation.

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