The Supreme Court just posted transcripts from todays oral arguments in a case set to shape the future of video games' status as either similar to cigarettes and beer, or works or artistic expression, just like books, music, and movies.
It's a longish document, running to 72 pages double-spaced, and reveals a court frequently at odds with state of California representative Zack Morazzini over questions about the vagueness of the law's definition of "violence" and the broadness of its language in attempting to ban the sale of "violent video games" to minors.
"I--I am not just concerned with the vagueness," says Justice Scalia at one point. "I am concerned with the vagueness, but 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."
"You are asking us to create a--a whole new prohibition which the American people never--never ratified when they ratified the First Amendment. They knew they were--you know, obscenity was--was bad, but--what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does--will that affect them? Of course, I suppose it will."
Justice Scalia continues, asking Morazzini whether the court should work "day by day" to determine if anything else should be exempted from First Amendment protection. "Why--why is this particular exception okay," he asks, "but the other ones that I just suggested as not okay?"
At which point Justice Alito injects a bit of humor, asking "Well, I think what Justice Scalia wants to know is what James Madison thought about video games...[d]id he enjoy them?"
"No, I want to know what James Madison thought about violence," says Scalia. "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? Anybody?"
"You are asking us to go into an entirely new area where there is no consensus, no judicial opinions," adds Justice Kennedy. "And this is--and this indicates to me the statute might be vague."
Check out the full transcript for yourself, embedded below, and we'll be back with more highlights from it and the post-session conference call with the Entertainment Software Association shortly.
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