[Today’s post is by FMC Policy Counsel Chris Naoum]

A couple of weeks ago, we told you about the amicus brief we filed with the Supreme Court in the case Schwarzenegger v EMA. On Tuesday, Nov. 2, we took the show on the road — or at least down the road — to the Supreme Court building to hear the oral arguments live and in person.

As we mentioned in a previous post, this case is about violent video games — specifically, a California law that would prohibit their sale to minors. Nothing wrong with that, right? Well, the statute and its definitions could have huge implications on First Amendment protection for creators. You know, like musicians. Which is why we filed a brief about how dangerous it is to create a broad new category of speech without considering its impact on free expression and the ability to deliver works directly to consumers (say, over the internet) without having to worry about triggering arbitrary penalties.

I was up at 4:00am and in line at 5:45 to join overzealous gamers and legal wonks in their quest to find out whether a state can prohibit the sale of violent video games to minors without amounting to a restriction of free speech. (A far more amusing recap by one of those wonks (who happens to be a friend of mine) can be read here.)

The highlights

The battle lines were drawn less than two minutes into California Deputy State Attorney General Zachary P. Morazzini’s opening statements when Justices Scalia, Ginsburg, Sotomayor and Kagan ripped into the substance of the California law.

Justice Scalia kicked things off by asking the Attorney General what he would consider deviant in terms of descriptions of violence. “Some Grimm’s Fairy Tales are quite grim… are you trying to ban them too?” the Justice asked.

Justice Sotomayor also chimed in early. “One of the studies … says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?” she queried.

The grilling continued with Justice Ginsburg. “If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games?” Ginsburg asked. “What about films?  What about comic books? Grimm’s Fairy Tales. Why are video games special?”

Justice Sotomayor asked the Attorney General any tradition of regulating violence, at which point Morazzini flinched and stuttered through an attempt to recall historic case evidence. Still, he stressed the need to protect minors from this type of material. This prompted Sotomayor to ask, “Could you get rid of rap music?  Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them?”

The newest member of the Nine, Justice Kagan, had her moment to shine during the petitioners’ closing arguments. Justice Kagan asked about the specific factors that would bring a violent video game under the jurisdiction of the California Statue. She asked Morazzini if the iconic game Mortal Kombat would fall under their category of unprotected speech, saying, “I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [this game].”

Sotomayor inquired about violence being inflicted not on a human but a Vulcan with a humanlike form. Would that fall under the type of violent depiction California was seeking to restrict? What about a human-like avatar? The Justice even went as far as to ponder character resurrection. “What happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle?” she asked. “Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.”

The Petitioner’s arguments were also weighed down by the age restriction in the statute. “What age group are you talking about?” Justice Alito asked. “If a video manufacturer has to decide under your statute where its game stands, what age of a child should the manufacturer have in mind? A 17-year-old? A 10-year-old?” Justice Ginsburg added that the statute does not differentiate between a 17 year old and 4 year old.

It was Justice Kennedy, however, who succinctly captured the Justices’ prevailing attitude in suggesting that the biggest problem with the petitioner’s case is that, “for generations there has been a societal consensus about sexual material… but 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, and I just thought you would like to know that reaction.”

Morazzini’s biggest champion was clearly Justice Breyer, who piped up at the beginning of the Respondent Paul Smith’s argument and asked the industry lawyer why is it not “common sense” that there is no redeeming quality to this sort of speech that depicts graphic violence towards women and minors.

Chief Justice Roberts made it clear that the door is still open for the appropriately tailored legislation that could restrict forms of violent speech to minors. He refuted a suggestion by Smith that violent expression is a part of our heritage, some of it aimed at minors. “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 with mercy, being merciless and decapitating them, shooting people in the leg so they fall down… pour gasoline over them, set them on fire and urinate on them,” he said. “We protect children from that. We don’t actively expose them to that.”

Smith stressed the point that there are already controls to keep violent video games out of the hands of children. He pointed to the rating system, parents monitoring their children in the homes, and the price of purchasing the games these days. Justice Alito did not buy the Respondent’s argument and mocked the lawyer by stating “And you say there is no problem because 16-year-olds in California never have $50 available to go buy a videogame, and because they never have TVs in their room and their parents are always home watching what they with their video games, and the video games have features that allow parents to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?”

From where I was sitting, it seemed that that Morizzini came under significantly more fire than Smith. Whether this means that the Justices will weigh in favor of the Respondent and the video game manufactures remains to be seen. We’ll keep you posted on developments and the possible implications on creativity and speech.