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.

Grand Theft Auto San Andreas video game.

The state of California is attempting this morning to defend a 2007 law banning the sale or rental of violent video games to anyone under 18. Offenders may be fined $1,000 for each game sold. The law was struck down on First Amendment grounds in both the district court and the 9th Circuit Court of Appeals. So much for the legal angle. The more profound story playing out in court today goes something like this: Gamers: Meet the old people. Old people: Try to find the power-on button. Everyone else, search for James Madison's avatar and ask what he thinks of Grand Theft Auto.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Level 1:A dark Supreme Court chambers. Nine Jurists. Two lawyers. No ninja stars. Constitution power: low. Joke power: Off the Charts. FIGHT!

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Zackery P. Morazzini represents the California attorney general's office. As he begins to defend the ban as necessary to protect the rights of parents to direct their children's moral upbringing and to also protect the welfare of California children exposed to "deviant violent video games," Justice Antonin Scalia sees a clear shot and quickly takes it: "What," he wonders, "is a deviant violent video game as opposed to a normal violent video game?" Then he adds, just because he can, "Some of the Grimms' fairy tales are quite grim, to tell you the truth."

Joke power surge. Points to Scalia. Justice Elena Kagan wonders why allowing a ban on violent video games for minors doesn't lead to a ban on violent movies as well. In order to violate the California ban, the video in question must depict "killing, maiming, dismembering, or sexually assaulting an image of a human being" such that it appeals to a "deviant or morbid interest of minors" and lacks "serious literary, artistic, political, or scientific value for minors." This is language imported from the court's obscenity doctrine describing a class of speech that can be regulated for minors. Today the court is being asked to create a new category of unprotected speech for kids: gross violent video games.

Level 2:Youth power.

Kagan and Justice Sonia Sotomayor take turns being the hippest justices today. "Have you heard some of the lyrics about some of the rap songs?" Sotomayor asks in horror. Why not regulate them? Kagan, playing to the law clerks, asks Morazzini whether Mortal Kombat would be banned under the law, describing it as an "iconic game which I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing."

Ten minutes into the argument, Morazzini is barely visible beneath all the blood spatter. He's been assailed for the statute's vagueness, its overbreadth, and for the state's failure to show that playing violent video games is any more likely to engender violence in children than watching Bugs Bunny. Justice Samuel Alito can't fathom how California can set a standard that is the same for a 17-year-old and a 10-year-old. Morazzini posits that the jury be told to imagine the "average minor." Scalia takes aim: "Is the average minor between zero and 18—is that 9 years old??" Joke power surge: 300 points.

Justice Clarence Thomas is conserving his energy.

Justice Anthony Kennedy opts to play it straight today, telling Morazzini: "This statute might be vague. I thought you might like to know that." Later, Kennedy loses points as a result of a technology meltdown, asking Morazzini whether there is a way to regulate video games short of a ban. He suggests a V-chip. Morazzini gives him a look that says "The '90s are so over, your honor," while politely murmuring, "I believe the V-chip is limited to television, Justice Kennedy."

Level 3: Scalia is in full sniper gear at the top of a deserted Capitol building. He tells Morazzini: "You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment. … What's next after violence? Depictions of drinking? Smoking? Movies that show smoking can't be shown to children?" And suddenly Alito is there with the punch line: "Well, I think what Justice Scalia wants to know is what James Madison thought about video games? Did he enjoy them?" Nobody looks more surprised than Justice Alito that he has just brought the house down. Sudden-death orginalism smackdown: 3,000 points.

When Alito later says that video games represent a new medium that "couldn't have been envisioned when the First Amendment was adopted," Scalia looks as though he has been stabbed in the back with a rusty bayonet. Mastery of the first originalist defense of living constitutionalism: 5,000 points. Alito advances to the next level.

Justice Ruth Bader Ginsburg and Scalia sense that they are vulnerable and team up. Asks Ginsburg: "Does the state of California have an office that will view these videos and say, yes, this belongs in this—what did you call it, deviant violence—and this one is just violent but not deviant?" Morazzini: "No." Then Scalia jumps in: "You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice." Snarky power surge. Scalia advances to the next level.

Paul Smith represents the trade groups for video game producers and distributors. He opens by saying California wants to "deny constitutional protection to some ill-defined subset of expressive works, and, I submit, not just video games, but movies, books, and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive."

Chief Justice John Roberts uses the last of his parent-of-young-kids powers to stop him in his tracks: "In these video games, the child is not sitting there passively watching something; the child is doing the killing. The child is doing the maiming."

Level 4: Justice Stephen Breyer goes rogue. Ripping the sleeves off his robes, he ties them around his forehead in a makeshift bandana: He's had it up to here with all this talk of the Constitution: "Talking about common sense, why isn't it common sense to say that if a parent wants his 13-year-old child 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 do this for an hour or so, and there is no social or redeeming value?" Strong adjective power surge.

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."

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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