The Supreme Court's landmark 7-2 decision in Brown vs. EMA grounded games as a form of artistic expression worthy of First Amendment protection, but the Justices didn't come to the decision lightly. Justice Elena Kagan says she was unsure of her decision, and says it's the case in which she's second-guessed her decision the most.
"It was the case where I struggled most and thought most often I'm on the wrong side of it," said Kagan at a recent speaking engagement reported by the Aspen Daily News (via GameSpot). "You could see how the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people."
However, the free speech afforded by the Constitution won out. "I couldn't figure out how to square that with our First Amendment precedence, and precedence is very important to me," she said. "I sweated over that mightily."
She went on to comment that this court is "extremely protective" of the First Amendment and free speech rights. "There is no question that the court has a very expansive view of the First Amendment."
The full decision showed a wide swath of opinions. The majority opinion ruled that video games as a medium are no less protected than other creative works. A concurring opinion--one that agrees with the majority, but for different reasons--argued that the California law was poorly-constructed. The dissenting opinions varied. Justice Clarence Thomas argued that children are not intended to have free speech protections, while Justice Stephen Breyer concentrated on the potential negative effects on children.
Even if Kagan had sided with the dissenting opinions, though, the ruling would have stood at 6-3--more than enough for the majority needed to strike down the law.