
Today I had the rare honor of not only attending a Supreme Court argument, but also spending an hour and a half with Justice Scalia, the Court's second most senior Associate Justice. Those of you who are familiar with American jurisprudence are probably familiar with Justice Scalia's reputation as an extremely conservative justice who is a strict originalist when it comes to constitutional interpretation. For those that are unfamiliar with the different schools of thought in constitutional interpretation, originalist believe that the terms of the United States Constitution should be interpreted as they were intended at the time they were ratified. The critical question asked by originalist is, "What would a reasonable person at the time of ratification have understood these words to mean?" (For a look at opposing schools of thought Google "interpretivists" and/or "living Constitution.") While the bulk of my time with Justice Scalia was focused on matters that are probably largely uninteresting to Destructoid readers, I did take this rare opportunity to ask the Justice his feelings concerning recent state videogame legislation. In particular, I asked him whether as an originalist he believed that state laws banning the sale of mature videogames to minors ran afoul of the First Amendment. Hit the jump to see what the Justice had to say.
In his most succinct reply of the day, Justice Scalia replied that he did believe such legislation could be constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not -- he instantly drew the parallel to regulation of pornography sales. However, Justice Scalia emphasized that unprotected speech, such as obscenity, which he was unwilling to define for reasons that are immediately evident to any constitutional scholar, can be prohibited from sale regardless of the purchaser's age. I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that videogames themselves are not protected by the First Amendment despite his strict originalist beliefs. The implications of Justice Scalia's answers are multi-dimensional. First, he suggests that upon appeal to the Supreme Court, at least one of the nine justices would affirm state laws that ban the sale of mature-rated games to minors. Second, his remarks suggest Justice Scalia believes that videogames not qualifying as obscenity (defined in a note following this article) are protected by the First Amendment. Essentially, this seems to mean that one of nine Supreme Court justices believes the sale of mature games to minors can be regulated, but that the overall regulation of the medium would most likely be unconstitutional. Mind you, Destructoid readers, that such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents. It is important to note that several lower state and federal courts are in disagreement with Justice Scalia. In particular, an opinion penned by Richard Posner, a judge I hold in the highest regard, as well as opinions penned by numerous other Circuit Courts have held that the government cannot prevent minors access to mature arcade games or from purchasing mature-rated console titles. What does the Destructoid community think? And, on the off chance that I am able to speak with another judge this year, what types of questions would you be interested in asking? Note on "obscentiy": The current test for obscenity was established in Miller v. California, 413 U.S. 15 (1973), and is typically referred to as The Miller Test. The test sets forth three prongs that must be satisfied in order for a work to be considered obscene. The three prongs are: (1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions as defined by applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, and scientific value. Ed. Note: As this article has been gaining a lot of attention, I think it is important to make a few clarifications. First, despite Justice Scalia’s belief that videogame laws banning the sale of mature games to minors could be Constitutional, there are many other factors that could change his mind. American jurisprudence is firmly grounded in the idea that suits are decided on a case-by-case basis and a generalized response in an informal conversation is hardly the definitive answer. Second, as my language suggests, much of the latter half of this article is conjecture based on how Justice Scalia answered the question. Take that for what it’s worth.
|
 |
|
02/19/2008 15:47
02/19/2008 15:47
I have no questions at this time your honor.
02/19/2008 15:47
02/19/2008 15:47
I can only hope that the other 8 justices are a bit less restrictive in their frame of mind. I can put money down that Scalia has probably never even played a game.
02/19/2008 15:48
Great little write up. You should feel honored to have been given the chance to speak with him and ask some questions. I feel special knowing his opinion on the matter, haha.
02/19/2008 15:49
02/19/2008 15:50
My opposition towards legislating the sale of M-rated video games to children lies not with the purpose of the law. I believe that there is content in some video games that is wholly inappropriate for people below a certain level of maturity and they should be prevented from exposure to this media.
Where I take issue is with a governing body mandating said prevention. The burden of responsibility for the raising of our children lies with their parents (or legal guardian), not with the state. Laws such as these punish companies and individuals for something that can clearly be defined as a paternal obligation to the well-being and integration of a child in society.
In addition, laws such as these can open the door to new legislation or reinterpretation that further restricts the rights of citizens. The less of these laws that take right and responsibility away from its citizens, the better we'll all be for it.
02/19/2008 15:52
That is frickin awesome that you spoke it him and I agree that regulating the sale of games to minors is heavily needed I just wish that stores and ratings board would take more responsibility for it and taht parents would pay more attention. Still good to hear that he realizes you can't restrict violent game sale all over the place.
Now i have to go not care about the law.
02/19/2008 15:55
How did you manage to land an interview with Justice Scalia?
02/19/2008 16:14
"Although I think you may have meant to say "... state laws banning the sale of mature-rated video games to minors games ran afoul of the First Amendment." Unless I'm reading it incorrectly."
No, the legal precedent for banning or prohibiting obscenity does not at all come with a minimum age requirement. The Miller V California case wasn't because they were selling porn to children. :P There in in fact legal precedent in America, for an outright ban of certain kinds of media (and some already in place, such as child pornography).
Of course, thankfully in its current form it's enacted to nowhere near the extent of England, Germany, or Australia.
02/19/2008 16:36
02/19/2008 16:45
I tend to agree with Posner (7th Cir. represent!), but his opinion in American Amusement v. Kendrick doesn't appear to provide much cover. Posner argued that Indiana was trying to regulate violent games on the grounds that they were psychologically harmful, requiring a showing of proof. But the reasoning of the opinion seems to concede that games with violent scenes that "turn the stomach" of the average community member could be banned by analogy to obscenity laws.
The public might not find the original House of the Dead stomach-turning because it is not realistic. But Posner suggests that a photo of a person being decapitated would be considered obscene material. Sounds a little like Manhunt 2 to me.
02/19/2008 16:52
02/19/2008 17:07
But it seems like there a few legal types here who will correct me if I err.
02/19/2008 18:01
On the other hand, I can remember a time when a sixteen year old Dexter bought Grand Theft Auto III, and I would have been indignant at the time if I couldn't play it.
Perhaps it could be argued that it holds at least some artistic merit?
02/19/2008 18:06
Is this part of your studies??
I'd say most people who spend an hour and a half in a room with a supreme justice wouldn't be asking many questions.
02/19/2008 18:34
02/19/2008 20:52
It does kind of impress upon you the importance of electing good public officials instead of hoping that the courts will give you the decision you want.
02/20/2008 10:05
02/20/2008 14:10
02/20/2008 16:48
02/20/2008 17:32
02/20/2008 21:14
02/22/2008 13:20
02/22/2008 13:23
*chuckles* We get the hint.
02/22/2008 13:31
02/22/2008 13:35
I actually look forward to the day when a law like this is passed. Restricting minors from getting their hands on M-rated games would be fantastic. It would not only put the ball in parent's court, but it would also prohibit (to a certain degree) jokers like Jack Thompson from placing all blame for some child's juvenile behavior solely on video games. It would force parent's to take responsibility and play an active role in monitoring the content their children view.
02/22/2008 13:38
02/22/2008 13:40
Next time throw a curve ball to a judge: How do they feel about gay marriage in video games? Obscenity or FA protected?
02/22/2008 13:43
02/22/2008 13:48
Just curious, how exactly did you get to attend the hearing and talk with Justice Scalia.
02/22/2008 14:08
02/22/2008 14:16
02/22/2008 14:40
02/22/2008 15:22
02/22/2008 15:25
02/22/2008 15:25
02/22/2008 15:33
Fantastic writeup, how did you find yourself conversing with a Justice?
02/22/2008 15:39
I’m a law student in Washington, DC and I have a professor who has been friends with Justice Scalia for a long time. He set up an appointment for a small group of us (around 20 or so) to watch a Supreme Court argument followed by a private audience with Justice Scalia in the Supreme Court’s west conference room.
It was a great opportunity considering there were so few of us and Scalia doesn’t typically do “interviews”--he’s notoriously critical of turning the Court into “entertainment.” Being an avid gamer and occasional blogger, I decided to take the opportunity to ask him about gaming legislation.
He was surprisingly friendly and humorous. Living in DC all you typically hear are Scalia horror stories, but I was surprised how down to earth he was.
02/22/2008 15:48
02/22/2008 15:56
02/22/2008 15:57
Hahaha, that is fantastic! Can someone please change that to the main picture for this blog?
02/22/2008 16:14
Is there any scale to rate a subject on the different dimensions of the "Miller Test", especially point (3)?
02/22/2008 16:19
02/22/2008 16:20
Did I just violate the copyright of a Supreme Court Justice? Or at least the person who took the photo? Let's hope I have a good fair use defense...
02/22/2008 16:28
Let's just hope you're protected by the anonymity of the Internet... that seems much easier.
02/22/2008 16:37
02/22/2008 17:31
02/22/2008 17:38
02/22/2008 18:24
Now that the smart guy has said something, I'm sure we can get back to the angry, impotent bleating about Fox news and Jack Thompson.
02/22/2008 19:10
However, if such a law ever does get passed, that law had better cover R-rated and "Unrated" movies and music with "Parental Advisory Explicit Content" in them as well as the video games, or they damn well better have a similar law in the works that does so, otherwise it would, once again, be unfairly targeting video games over the other forms of media, which seems to be a popular pastime lately with the Jackholes of the world.
02/22/2008 21:27
02/22/2008 22:29
02/23/2008 09:42
02/23/2008 14:13