The Supreme Court justices appeared highly sceptical of the State of California's arguments today that certain violent video games should be illegal to buy, questioning whether such exceptions would need to be applied to rap music and even Grimm's fairy tales.
The justices were hearing arguments in California vs the Entertainment Merchants Association and Entertainment Software Association, a five-year battle in the courts that so far has tilted in favour of the video game industry.
California Attorney General Zackery Morazzimi started today's one hour session at the US Supreme Court saying that the "deviant level of violence that is presented in a certain of category of video games" requires legal restrictions to protect minors.
Morazzimi's opening statement was almost immediately interrupted by Justice Antonin Scalia who pointed out that Grimm's fairy tales are very violent as well.
"So are you going to ban them too?" Scalia asked of the attorney general.
Scalia, one of the court's most conservative justices and most vocal in the questioning of the state today, repeatedly and often with humour questioned Morazzimi about the California law and its effects on the first amendment.
"You are asking us to create a whole new prohibition... what's next after violence? Drinking? Movies that show drinking? Smoking?" asked Scalia in the hearing.
The justices also pressed Morazzimi to argue that California's law is not too vague.
While not as vigorous in their questioning, the court also pressed the video game industry's resistance to accept any law that would limit the exposure of children to a potentially harmful game. And questioned whether the industry would accept lesser restrictions such as requiring putting violent video games on the top shelf.
Some justices wondered if there was perhaps a valid interest in protecting minors from hyperviolent games.
"Imagining a game that allows a player to torture babies," Justice Stephen Breyer asked. "Why isn't it common sense for the state to say 'Parents, if you want your 13-year-old to play it you have to buy it?'
In 2005, California governor Arnold Schwarzenegger had signed into law a bill that would make the sale of exceptionally violent video games to children a crime subject to a $US1000 fine. The video game industry pushed back, arguing that California's law violated First Amendment free speech protections. The gaming industry succeeded in getting the courts to block the California law, as they had in other states where similar laws were planned, all on free speech grounds. Two tiers of courts sided with the gaming industry in California, unswayed by state officials' arguments that violent video games represented a distinct danger to the welfare and psychological welfare of children.
California has contended that extremely violent video games should be subjected to the same standards and tests that allowed the State of New York in the late 1960s to outlaw the sale of pornography to children. In that case, Ginsberg vs New York, the Supreme Court supported a state's right to block the sale of certain kinds of sexual content from children. The Court hasn't previously permitted any such law for violent content.
The California law would define violent video games subject to this standard as those that fail a version of the "Miller Test", a test for obscenity that defines a work as, among other things, lacking any "serious literary, artistic, political or scientific value".
Heading into the hearings with the Supreme Court, the video game industry has been backed with briefs from the main trade groups behind movies and music as well as corporations such as Microsoft, rights groups such as the American Civil Liberties Union and the business advocacy group, The US Chamber of Commerce. California has received the support of some sympathetic states but has seen no correspondingly large support from interest groups.
The Court agreed in April to hear arguments about this case. Its decision is expected before its summer recess in June 2011.
A decision by the Court in favour of the video game industry would likely end California's pursuit of laws against violent games and leave restrictions against games to the industry's ratings board and to parents.
A decision in favour of California would make video games the only type of media content in the United States that can be illegal to sell to children based on severity of violent content, a decision that would affirm that games have distinct affects on a young audience that other forms of entertainment do not - or that that the speech in games is not seen meriting the same protection as that in other media.
Follow Kotaku's coverage of this momentous case at our Schwarzenegger Vs page.