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Original Understanding

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From the oral argument in the violent video game case, Schwarzenegger v. Entertainment Merchants Assn:

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

          (Laughter.)

JUSTICE ALITO: Did he enjoy them?

Later, more seriously:


JUSTICE SCALIA: You really don't want to argue the case on that ground. I gather you don't believe that the First Amendment reads, "Congress shall make no law abridging the freedom of speech except those that make sense." Is that -
MR. SMITH: Your Honor, my main ground today is exactly that, that this Court said last year in United States v. Stevens it doesn't have a freewheeling authority to create new exceptions to the First Amendment after 200 years based on a cost-benefit analysis, and this is a test of that. This is exactly what the State of California is asking you to do.

JUSTICE ALITO: But we have here a new -- a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. It is totally different from -- it's one thing to read a description of -- as one of -- one of these video games is promoted as saying, "What's black and white and red all over? Perhaps the answer could include disposing of your enemies in a meat grinder." Now, reading that is one thing. Seeing it as graphically portrayed -

JUSTICE SCALIA: And doing it.

JUSTICE ALITO: -- and doing it is still a third thing.
So this presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted. And to say, well, because nobody was -- 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 violated is entirely artificial.

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