Justices Debate Video Game Ban
By ADAM LIPTAK
WASHINGTON — In a lively and sometimes testy Supreme Court argument on Tuesday over a law banning the sale of violent video games to minors, the justices struggled to define how the First Amendment should apply to a new medium.
They tried analogies — to books, films, cartoons, comic books, fairy tales and rap lyrics. They argued about what the drafters of the Bill of Rights would have made of an extremely violent game like Postal 2.
They worried about whether it made sense to extend, for the first time, principles allowing the government to regulate depictions of sex to depictions of violence. They considered conflicting studies on the effects of violent video games on young people.
And they expressed doubt about whether the law at issue, from California, drew sensible distinctions among the games it covered.
The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”
“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”
“Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”
Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”
In Ginsberg v. New York in 1968, the court did allow the government to regulate the distribution of sexual materials to minors that fell well short of obscenity, which is unprotected by the First Amendment.
Still, most of the justices seemed to agree that a ruling in favor of the California law would require a novel extension of First Amendment principles to expressions concerning violence.
In April, in United States v. Stevens, the court struck down a federal law making it a crime to sell videos of dogfights and other depictions of animal cruelty by an 8-to-1 vote, saying the court was not prepared to create a new category of speech outside the bounds of the First Amendment.
The court’s decision just days later to hear the video game case, Schwarzenegger v. Entertainment Merchants Association, No. 08-1448, was thus a surprise, particularly as lower courts have been unanimous in saying similar laws violated the First Amendment.
“How is this any different,” Justice Sonia Sotomayor asked, “than what we said we don’t do in the First Amendment field in Stevens, where we said we don’t look at a category of speech and decide that some of it has low value?”
Zackery P. Morazzini, a lawyer for California, said the state should have flexibility in limiting speech where minors are involved.
The methodology of the Stevens decision, which left open the possibility that a more tightly drafted law might survive constitutional scrutiny, may provide the court with a template for its ruling on the California law.
But Justice Scalia said there was nothing in the tradition of American free speech that would allow the government to ban depictions of violence. The thought, he said, would have been foreign to the drafters of the First Amendment, drawing a needling comment from Justice Samuel A. Alito Jr., the lone dissenter in the Stevens case.
“What Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“No,” Justice Scalia responded, “I want to know what James Madison thought about violence.”
The California law was struck down by lower federal courts and has never come into effect. Justice Alito and Chief Justice John G. Roberts Jr. were, along with Justice Breyer, the members of the court who seemed most inclined to try to find a way to uphold the law.
Paul M. Smith, a lawyer for the video game industry, faced a barrage of hostile questions from those three justices, who elicited from him the acknowledgment that there was nothing states could do to regulate the sale of, in Justice Alito’s words, “the most violent, sadistic, graphic video game that can be developed.”
Current First Amendment doctrine would not allow it, Mr. Smith said, and social science studies do not suggest that a law banning violent games would be good policy even if it passed constitutional muster.
“The existing solutions are perfectly capable of allowing this problem to be addressed,” Mr. Smith said, “assuming it is a problem.” Among those solutions, he said, were the industry’s own ratings, the cost of the games and the difficulty of playing them at home in secret.
Justice Elena Kagan, the court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.
“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Mr. Morazzini said the game was “a candidate” for government regulation.
No hay comentarios:
Publicar un comentario