As Morazzini asked the court to adopt a rule of law similarly restricting the sale of "deviant, violent video games," Justice Scalia interrupted him to ask what constituted deviant violence as opposed to "normal" violence. Justice Scalia then noted that Grimm's fairy tales are quite violent and asked whether they should be banned. Justice Ginsberg then interjected, "What's the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm's fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?"
After more discussion of other forms of entertainment, including the violence in cartoons such as Bugs Bunny, Justice Sotomayor asked where there was a tradition of the court regulating violence. Morazzini responded, "Your Honor, California submits that when the rights of minors are at issue and not the rights of adults, the standard should be more flexible. The Constitution should recognize that when the audience is minors the same standard should not apply. Therefore, the question should not be whether or not historically violent speech was regulated, but whether or not the Constitution guarantees minors a right."
Not long after, Justice Scalia would say, "I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. 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." After Justice Alito joked that Justice Scalia wanted to know James Madison's opinion on video games, Justice Scalia replied, "No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there--there was an exception to it for--for speech regarding violence."
Mr. Paul Smith presented the position for the respondents. In his opening remarks he said, "California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law. Instead it's asking this court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment." Mr Smith would later state, "my position is that there is not a violence exception to the First Amendment for minors and there should not be."
When called to address the contention that there was no exception being asked for and that the challenge stood as a traditional strict scrutiny First Amendment test, Smith offered this response: "they have not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls, where crime, including violent crimes, since the introduction of these games has been plummeting in this country, down 50 percent since the day Doom first went on the market 15 years ago; in a world where parents are fully aware of what's going on in their homes and aware of the ratings system and can use all the other tools that we have talked about."
In pressing both sides to validate their argument the court gave little indication as to how it will ultimately rule. While they pressed Mr. Morazzini on the matter of creating an exception to the First Amendment, they were equally probing of Mr. Smith as to why games with behavior such as torturing children couldn't be defined and restricted from sale to minors. This eventually led to Mr. Smith taking the difficult position that there is nothing the state can do "to limit minors' access to the most violent, sadistic, graphic video game that can be developed." While many lean to the court confirming First Amendment protection for video games and ruling in favor of the EMA and ESA, strong arguments on both side make the outcome unsure until we hear the final decision of the court which should be forthcoming.
Read our previous stories on the case: ESA Urges Gamers to Join the Video Game Voters Network in Fight Against Proposed California Law, Judge Declares California Violent Game Bill Unconstitutional, Schwarzenegger Vows Revenge, Violent Games Bill One Step Away