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From questions asked on November 2 by Supreme Court justices in oral arguments, in Schwarzenegger v. Entertainment Merchants Association. The case concerns a 2005 California law that prohibits the sale or rental to minors of video games that allow players to kill, maim, or sexually assault human characters. Video-game producers argued that the games are speech protected under the First Amendment.

justice scalia: What’s a deviant violent video game? As opposed to what? A normal violent video game?

justice sotomayor: One study says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video game. So can the legislature now outlaw Bugs Bunny?

justice scalia: Some of the Grimms’ fairy tales are quite grim, to tell you the truth. Are you going to ban them too?

justice breyer: If a parent wants his thirteen-year-old child to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women for an hour or so—why isn’t it common sense to say a state has the right to say, “Parent, if you want that for your thirteen-year-old, you go buy it yourself”?

justice scalia: Artistic for whom, for a five-year-old?

justice sotomayor: So what happens when the character gets maimed, head chopped off, and immediately after it happens they spring back to life and they continue their battle? Is that covered by your act?

chief justice roberts: So your position is that the state legislature cannot pass a law that says you may not sell to a ten-year-old a video game in which they set schoolgirls on fire?

justice sotomayor: Would a video game that portrayed a Vulcan, as opposed to a human, being maimed and tortured, would that be covered by the act?

justice kagan: You know, when you think about some of them—the first video game was Pong. It was playing tennis on your TV. How is that speech at all?

justice breyer: I mean, what’s the difference between sex and violence?

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January 2011

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