The Supreme Court tries to figure out what Madison would have thought about Postal 2.

Oral argument from the court.
Nov. 2 2010 7:48 PM

Simulated Originalism

James Madison, meet Postal 2.

(Continued from Page 1)

Smith tries to explain that there is serious doubt as to "whether parents need additional help in exercising the role that they have played throughout history," but Breyer can't let him talk: "Yes. They need additional help because many parents are not home when their children come home from school. Many parents have jobs. We hope. And when their children are there, they do what they want."

Smith tries to explain about the parental controls but Roberts is flying at him again now, ninja stars in hand and all crazy-eyed. "Any 13-year-old can bypass parental controls in about five minutes."

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Level 5: Breyer, Alito, and Roberts turn into superheroes and fly around in circles. Breyer: "What common sense is there in having a state of the law that a 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old can go in and buy one of these video games?" He adds, "What's the difference between sex and violence?" Smith: "There is a huge difference." Breyer cuts him off again: "Thank you. I understand that."

Smith explains that for centuries Americans have shielded children from sex but not from violence. Retorts Roberts:  "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 … pour gasoline over them, set them on fire, and urinate on them. We do not have a tradition in this country. We protect children from that."

Alito: "Let me be clear about exactly what your argument is. Your argument is that there is nothing that a state can do to limit minors' access to the most violent, sadistic, graphic video game that can be developed."

Smith explains that every new technology, from crime novels to rock music, brings claims that it's harming the little ones. He reminds the court that there were "hearings across the street in the 1950s where social scientists came in and intoned to the Senate that half the juvenile delinquency in this country was being caused by reading comic books."

Level 6: Roberts asks whether Smith would object to a rule that said all the most violent videos "have to be on the top shelf out of the reach of children," noting they already do that with cigarettes. Smith replies that "cigarettes are not speech, your honor." Roberts snaps back: "I know that cigarettes are not speech, Mr. Smith." Silently adding "Because. You. Can't. Smoke. Speech."

It's a strange morning. Testy exchanges and unlikely alliances. Scalia lines up with Kagan and the liberal ladies while an angry Breyer joins forces with an outraged Alito and Roberts. I count only three votes to uphold the California ban, which again raises the question of how the court scraped up the four votes to hear the appeal in the first place.

It doesn't look very good for the California violent video ban, but if video game manufacturers are smart, they'll get to work on Mortal Kombat 7: The Revenge of James Madison.

Disclosure: I am on the boards of both the Thomas Jefferson Center for Protection of Free Expression and the Reporters Committee for the Freedom of the Press, which both filed briefs in this case on behalf of the video game team.

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