Violent video games, justice by justice

Monday, November 8, 2010

Audio of Supreme Court oral arguments

WASHINGTON — To an unusual degree, the Supreme Court oral arguments last week in Schwarzenegger v. Entertainment Merchants Association turned out to be something of a Rorschach test that showed which way the justices were leaning.

As the justices looked at California’s law banning the sale and rental of violent video games to minors, did they see a bite being taken out of the First Amendment, complete with censorship boards rejecting video games now and Romeo and Juliet next? Or did they see a common-sense effort to shield minors from a segment of a new medium whose redeeming value is dubious and whose harm is plausible?

Here is a brief look at how each justice appears to be appraising the law.

Surprisingly or not, Justice Antonin Scalia led the charge against the California law, asking the first skeptical question of California Deputy Attorney General Zackery Morazzini as soon as Morazzini said the state’s law restricted the sale to minors of “deviant, violent video games.”Scalia asked incredulously, “As opposed to what? A normal violent game?” and then added, “Some of the Grimm’s fairy tales are quite grim, to tell you the truth.”

But Scalia’s opposition to the law was even more convincingly on display when Paul Smith, the lawyer for the game industry, seemed to concede some ground under questioning from Justice Elena Kagan. She asked if there was “any showing the state could make” about the harm of video games that would save the law.

“Well, I guess I can imagine a world in which expression would transform 75 percent of the people who experience it into murderers,” Smith offered. That may not seem like much of a concession, but it earned Smith a scolding from Scalia. “You really don’t want to argue the case on that ground,” Scalia said. “I gather you don’t believe that the First Amendment reads, ‘Congress shall make no law abridging the freedom of speech except those that make sense.’”

Justice Stephen Breyer seemed the most supportive of the California law, arguing for a problem-solving approach that gave less importance to the “make no law” command of the First Amendment. “Why isn’t it common sense to say that if a parent wants his 13-year-old to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women … and there is no social or redeeming value, it’s not artistic, it’s not literary, et cetera, why isn’t it common sense to say a state has the right to say, ‘Parent, if you want that for your 13-year-old, you go buy it yourself’?”

Last term, Chief Justice John Roberts Jr. won praise from First Amendment advocates for his majority opinion in United States v. Stevens, which struck down a federal law criminalizing certain depictions of cruelty to animals. The Court’s precedents, Roberts wrote in April, cannot be taken as establishing “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

But in the arguments last week, Roberts used his own questioning to distinguish the video-game law from the outcome of the Stevens case — suggesting he may approve of the California statute. The animal-cruelty law was struck down because it was overbroad, Roberts stressed. “It’s too broad to apply the law to everything,” Roberts said, citing hunting videos as an example. “So we strike it down, it’s overbroad, but leave open the possibility that a more narrowly drawn statute might pass muster. Why isn’t that a good approach here?”

It wasn’t clear from that comment whether Roberts thought the California law actually should be struck down or whether he thought it was already narrow enough to be upheld. At other times Roberts sounded like a supporter of the law. When Smith said that violence, unlike explicit sex, has been a part of “works that we create for children and encouraged them to watch throughout the history of this country,” Roberts balked. “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg for mercy.”

The lone dissenter in Stevens in April was Justice Samuel Alito Jr., who called the animal-cruelty videos “a form of depraved entertainment that has no social value.” He may feel the same way about violent video games. In one exchange with Smith, Alito emphasized the games’ interactive nature. Referring to one video game in the record, Alito said it was promoted as a way of “disposing of your enemies in a meat grinder.” Reading that is one thing, he said; seeing it graphically portrayed is another; and “doing it is still a third thing.”

Alito continued, “So this presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted.” It is “entirely artificial,” he concluded, to argue against California’s law on video games on the basis that at the time of the Constitution’s framing, books about violence were not restricted.

Smith replied: “We have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling.” Alito did not seem persuaded.

Justice Anthony Kennedy was relatively quiet during the oral argument, but when he did speak, he seemed concerned that whereas there was a “societal consensus about what’s offensive for sexual material,” there was no similar consensus concerning portrayals of violence. He told California’s Morazzini, “You are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this indicates to me the statute might be vague.”

Vagueness is a classic reason for striking down a restriction on speech, and later Kennedy offered another one: “Isn’t there a less restrictive alternative,” namely the v-chip? “I believe the v-chip is limited to television,” Morazzini replied politely, but he did acknowledge that there are parental controls on some of the newer game machines — controls that he said can be easily bypassed.

Also unusually quiet was Justice Ruth Bader Ginsburg, but she too seemed concerned about vagueness. She asked if California offered any kind of “advisory opinion” stating that a given video game has deviant violence while another one doesn’t. “Is there any kind of opinion that the seller can get to know which games can be sold to minors and which ones can’t?” Morazzini said no, giving Scalia a perfect opening to reinforce Ginsburg’s doubts.

“You should consider creating such a one,” Scalia said sarcastically. “You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.”

New Justice Elena Kagan asked challenging questions of both sides, showing particular interest in the conflicting testimony about the harm to children that might be connected to use of violent video games. That led to “slippery slope” questions.

“Suppose a new study suggested that movies are just as violent,” she said to Morazzini. “Then, presumably, California could regulate movies just as it could regulate video games?” Kagan also had concerns about how to differentiate between games that should be restricted and those that should not. It was her questioning on this point that led Justice Kennedy to suggest that the California law is unconstitutionally vague.

Justice Sonia Sotomayor also probed the assertions of both parties. When Smith, pressed by Roberts, said there was nothing states could do to restrict sales of video games in a constitutional way, Sotomayor exclaimed, “Mr. Smith, how can you say that?”

But probably her most revealing comment was directed to Morazzini. “How is this any different than what we said we don’t do in the First Amendment field in Stevens, where we said we don’t look at a category of speech and decide that some of it has low value? We decide whether a category of speech has a historical tradition of being regulated.”

Finally, Justice Clarence Thomas, following his usual practice, asked no questions during oral arguments. He joined the majority in Stevens, which suggests he shared the Court’s reluctance to create new exceptions to the First Amendment. But in other contexts, Thomas has indicated he thinks minors — at least public school students — have diminished status under the First Amendment.

“As originally understood, the Constitution does not afford students a right to free speech in public schools,” Thomas wrote in the 2007 ruling Morse v. Frederick.

The bottom line? If their comments in the oral arguments are predictive, it appears that at least two justices — Breyer and Alito — are prepared to support the California law. If the silent Thomas joins them, there would be three votes to uphold it, and Roberts could be the fourth. But even that would mean a 5-4 margin striking it down — a much closer vote than in the Stevens case, but still a victory for First Amendment advocates.