Supreme Court justices differed along uncommon lines on Tuesday when considering arguments about whether to strike down a California law that prohibits the sale of violent video games to minors.
A mix of liberals and conservatives appeared to support arguments from both sides.
Conservative bulwark Justice Antonin Scalia spoke most strongly against the law, which he worried ran afoul of the Constitution on free speech grounds and because it is unclear to which games the law applies.
“It has never been understood that the freedom of speech did not include portrayals of violence,” Justice Scalia said. “You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.”
Justice Scalia’s position seemed to find support among Justices Elena Kagan and Sonia Sotomayor, both of whom are considered reliably liberal justices. Justice Anthony M. Kennedy, frequently the court’s swing vote, also expressed concerns that the law was too vague.
In a sarcastic exchange, Justice Scalia suggested to California Deputy Attorney General Zackery Morazzini a method to determine which video games are subject to the law.
“You should consider creating such a one. You might call it the California office of censorship,” he said. “It would judge each of these videos one by one. That would be very nice.”
Justice Stephen G. Breyer, one of the court’s most liberal justices, called on “common sense” in expressing support for the law. He questioned what “common sense” there was in allowing state laws to prevent minors from buying “a picture of a naked woman,” but not allowing states to prevent minors from buying a video game that features graphic violence.
Justice Breyer appeared to find unlikely allies in Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., two mainstays of the court’s conservative wing.
Justice Alito, in a statement that seemed to differ strongly from Justice Scalia’s position, said the case “presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted.
“And to say, ‘Well, because descriptions in a book of violence were not considered a category of speech that was appropriate for limitation at the time when the First Amendment was adopted,’ is entirely artificial,” said Justice Alito.
Chief Justice Roberts similarly seemed troubled by the level of violence present in some video games. He described the elements of one video game that included decapitating schoolgirls with a shovel and shooting people “in the leg so they fall, … pour gasoline over them, set them on fire and urinate on them.”
The chief justice, who is the father of two school-age children, said there is no U.S. tradition encouraging children to view such graphic violence.
“We protect children from that,” he said. “We don’t actively expose them to that.”
The case being argued is Schwarzenegger v. Entertainment Merchants Association, which challenged a California law prohibiting the sale of violent video games to anyone younger than 18 where a reasonable person would find that the violent content appealed to “a deviant or morbid interest of minors, is patently offensive to prevailing community standards, and causes the game as a whole to lack serious literary, artistic, political or scientific value for minors.”