||[Mar. 8th, 2011|03:28 am]
"i am the spirit that always denies"
in this previous post i described the ninth circuit court's decision
regarding a recent california law limiting the sale of violent video games
to minors. the supreme court heard oral arguements for the case in
november 2010 and their ruling on the case should be issued soon!
the best collection of information on the case
can be found on scotusblog here:
Brown v. Entertainment Merchants Association
Argument preview: Kids and video games
by Lyle Denniston is quoted below...
The petition raised two questions — whether violent video games are protected
at all by the First Amendment when sold to minors, and, if they were protected
and restrictions had to be judged under a “strict scrutiny” standard, whether
the state had to prove a direct link between the game’s violence and harm to
minors before such games could be banned for young customers.
To pass strict scrutiny, the law or policy must satisfy three prongs:
First, it must be justified by a compelling governmental interest.
While the Courts have never brightly defined how to determine if an interest
is compelling, the concept generally refers to something necessary or crucial,
as opposed to something merely preferred. Examples include national security,
preserving the lives of multiple individuals, and not violating explicit
Second, the law or policy must be narrowly tailored to achieve that goal or
interest. If the government action encompasses too much (overbroad) or fails
to address essential aspects of the compelling interest (under-inclusive), then
the rule is not considered narrowly tailored.
Finally, the law or policy must be the least restrictive means for achieving that
interest. More accurately, there cannot be a less restrictive way to effectively
achieve the compelling government interest, but the test will not fail just because
there is another method that is equally the least restrictive. Some legal scholars
consider this 'least restrictive means' requirement part of being narrowly tailored,
though the Court generally evaluates it as a separate prong.
here are my favorite quotes from the oral arguments on novenber 2nd...
Well, I think what Justice Scalia wants to know is what James
Madison thought about video games. (Laughter.) Did he enjoy them?
No, I want to know what James Madison thought about violence. 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?
Do you think Mortal Kombat is prohibited by this statute?
I believe it's a candidate, Your Honor, but I haven't played the game and been
exposed to it sufficiently to judge for myself.
It's a candidate, meaning, you know, yes, a reasonable jury could find that
Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the
clerks who work for us spent considerable amounts of time in their adolescence
Justice Kagan -
I don't know what she's talking about. (Laughter.)
justice kagan brings up a very sentient point... when mortal combat first
came out people were as outraged as they are about grand theft auto today.
strange since it seems so tame and the violence so cartoonishly silly when
you watch now.