poring over the transcripts from today's Schwarzenegger vs. EMA case, and as we discussed it, we decided our enthusiasm for the judges' utter contempt for the Schwazenegger side's argument could only be summed up with quotes from NBA Jam announcer Tim Kitzrow.
JUSTICE SCALIA: Some of the Grimm's fairy tales are quite grim, to tell you the truth.
MR. MORAZZINI: Agreed, Your Honor. But the level of violence -
JUSTICE SCALIA: Are they okay? Are you going to ban them, too?
JUSTICE SOTOMAYOR: I don't think; is that answering Justice Kagan's question? 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, say we can outlaw Bugs Bunny?
"Whoomp, there it is!"
JUSTICE SOTOMAYOR: How is this any different than what we said we don't do in the First Amendment field in Stevens, where we said we don't look at a category of speech and decide that some of it has low value? We decide whether a category of speech has a historical tradition of being regulated. Now, other than some State statutes that you point to, some of which are very clearly the same as those that we struck down in Wynn, where is the tradition of regulating violence?
"Get that outta here!"
MR. MORAZZINI: Your Honor, as to minors, I believe, looking at some of the historic statutes States had passed, had enacted in the past, there was a social recognition that there is a level of violent material JUSTICE SOTOMAYOR: What's the earliest statute?
MR. MORAZZINI: Pardon?
JUSTICE SOTOMAYOR: What's the earliest statute and how much enforcement was
MR. MORAZZINI: Your Honor, I don't know the earliest statute off the top of my head. I believe they go back into the early 1900s, perhaps later. I apologize, but I don't know that.
"Puts up a brick!"
JUSTICE GINSBURG: Is there -- you've been asked questions about the vagueness of this and the problem for the seller to know what's good and what's bad. California -- does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there -- is there any kind of opinion that the -- that the seller can get to know which games can be sold to minors and which ones can't?
MR. MORAZZINI: Not that I'm aware of, Justice Ginsburg.
JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.
"Whoomp, there it is!"
JUSTICE SCALIA: What about excessive glorification of drinking, movies that have too much drinking? Does it have an effect on minors? I suppose so. I -- I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. ...
"...He's heating up!"
And 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 -- a whole new prohibition which the American people never -- never ratified when they ratified the First Amendment. They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will....
"...He's on fire!"
But is -- is that -- are -- are we to sit day by day to decide what else will be made an exception from the First Amendment? Why -- why is this particular exception okay, but the other ones that I just suggested are not okay?