The first oral hearings in the Schwarzenegger vs EMA case were made yesterday, with judges appearing critical of the motion to outlaw violent videogames.
"I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech," Justice Antonin Scalia told California attorney general Zackery Morazzimi, who was arguing for a law that would make it a crime to sell violent games to minors.
"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 whole new prohibition. What's next after violence? Drinking? Movies that show drinking? Smoking?"
Morazzimi came under particular scrutiny for his use of the term 'deviant violent videogames' when attempting to qualify what the ban should encompass.
"As opposed to what? A normal violent videogame?" responded Scalia. "Some of the Grimm's fairy tales are quite grim, to tell you the truth... Are you going to ban them too?"
Justice Elana Kagan wielded the key question: "Do you actually have studies that show that video games are more harmful to minors than movies are?" Morazzini referred to a study by Douglas Gentile, presented as evidence in the case.
Gentile, an anti-game campaigner and researcher at Iowa University, has frequently accused videogames of being addictive, causing a lack of concentration and/or aggressive behaviour and reducing empathy for others. His methodology has been subject to significant criticism.
Rejoined Justice Sotomayor, "One of the studies, the Anderson study, 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, outlaw Bugs Bunny?"
While the judges frequently criticised the proposed law's vagueness, they also pressed EMA attorney Paul Smith hard, and questioned the levels of violence in historically controversial titles such as 2003's Postal 2.
Offered Chief Justice Roberts, "We do not have a tradition in this country of telling children they should watch people actively hitting school girls over the head with a shovel so they'll beg for 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. We protect children from that."
The EMA's Paul Smith was impassioned in his defence of the industry. "We do have a new medium here. We have a history in this country of new media coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals.
"It started with the crime novels of the late 19th century, which produced this raft of legislation that was never enforced."
Responded Justice Alito, "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?"
Chief Justice John Roberts also claimed that "any 13-year-old can bypass parental controls in about 5 minutes."
While the judges did not seem unified on the issue of tighter videogame regulation, they frequently appeared unimpressed by Morazzini's arguments.
"Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?" asked Justice Kagan.
Replied Morazzini: "No, it wouldn't, because the act is only directed towards the range of options that are able to be inflicted on a human being."
Very few recent games were mentioned in the hearings, with Justice Kagan also bringing up Mortal Kombat. Following Morazzini's assertion that it would be a candidate for the ban, she observed that it "I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [it]."
"I don't know what she's talking about," quipped Justice Scalia.