Scalia strongly questions violent video-game law

Wednesday, November 3, 2010

Justice Antonin Scalia, at times a fierce defender of the First Amendment, lived up to that role in oral arguments yesterday over violent video games.

Scalia has defended First Amendment rights in a number of major cases heard by the Court:

  • He voted to strike down flag-burning laws in Texas v. Johnson (1989) and U.S. v. Eichman (1990).
  • He wrote the Court’s opinion striking down a hate-crime ordinance in RAV v. City of St. Paul (1992), extolling the First Amendment’s prohibition against viewpoint discrimination and political correctness. 
  • He has railed against restrictions on campaign finance in numerous decisions.

Such unbridled, direct defense of the First Amendment was on full display yesterday in oral arguments in Schwarzenegger v. Entertainment Merchants Association, a case in which the Court will determine the fate of a California law that bars the sale or rental of violent video games to minors.

Scalia repeatedly pressed California Deputy Attorney General Zackery Morazzini on how to define a “violence” category to avoid banning other, less harmful kinds of violent depictions. Noting that violence is prevalent in fairy tales, Scalia said, “Some of the Grimm’s fairy tales are quite grim, to tell you the truth.”

California argued that just as the Supreme Court had approved of the concept of variable obscenity — obscene as to minors — for sexual materials harmful to minors, it should do the same thing for violence. But Scalia replied that the obscenity exception was rooted in history — not so for violence.

“I am concerned with vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech,” he said. “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.”

Scalia is known for focusing on the original intent of the Founding Fathers who created the Constitution and the Bill of Rights. He asked Morazzini: “Was there any indication that anybody thought, when the First Amendment was adopted, that there — there was an exception to it — for speech regarding violence? Anybody?”

No one can know from reading an oral-argument transcript how the Supreme Court will rule. But it surely sounded as if Justice Scalia views the idea of violence-as-obscenity as anathema to First Amendment jurisprudence.


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