High drama at announcement of ruling on violent video games

Monday, June 27, 2011

WASHINGTON — Suspense was high in the Supreme Court chamber as the moment neared for the decision in the video-game case to be announced. Paul Smith, the veteran Supreme Court advocate who argued against the California statute, was in the lawyers gallery, waiting anxiously. Justices Anthony Kennedy and Ruth Bader Ginsburg started off the session by reading from their rulings, both business cases. Since justices announce their decisions in the order of reverse seniority, that meant that either of the two most senior justices, Antonin Scalia or Chief Justice John Roberts, would be  the author of the video-game decision. (As chief justice, Roberts is regarded as having the most seniority, no matter how long he has been on the Court.)

That choice — Scalia or Roberts — was a good omen for First Amendment advocates. Scalia had been sharply critical of the California video-game law during oral argument, and Roberts has written some of the Court’s most important pro-First Amendment decisions in recent years, protecting controversial speech ranging from funeral protests to animal-crush videos.

It turned out to be Scalia who was the bearer of bad news for the California legislators and supporters of the law. In his booming voice, Scalia took apart the statute almost line by line. Before announcing the bottom line in Brown v. Entertainment Merchants Association — that the California law was unconstitutional — Scalia made it clear he was heading in that direction. Almost immediately, he said last year’s decision in United States v. Stevens, which struck down a law banning certain depictions of animal cruelty, “controls this case.” Lawyer Smith allowed himself to smile.

Scalia continued with a playful recitation of the books children read, which have “no shortage of gore.” He said, “Grimm’s fairy tales, for example, are grim indeed.” Likewise, literature for high school students such as Homer’s Odysseus, who “blinds the Cyclops by grinding out his eye with a heated stake.” His point was clear: no matter how objectionable violent video games are, they are of a piece with centuries of children’s fare that is protected by the First Amendment.

The long wait for a decision in the case — it was argued last Nov. 2 — was over. The Court had once again voted, in the name of the First Amendment, to protect objectionable speech from government efforts to censor and restrict. Said Scalia, “Even where the protection of children is the object, the constitutional limits on government action apply.”

Related: High court: Calif. can’t ban violent video-game sales

Experts, background on violent video-games case

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