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Violent Video Games

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Much of the discussion on the Supreme Court today will likely be in the violent video game case, Brown v. Entertainment Merchants Assn., No. 09-1448.  (Gov. Moonbeam is automatically substituted as a party for the Governator.  See S.C. Rule 35.3.)

It's not really up our alley, so I won't discuss it in depth on this blog.  The split among the Justices is interesting, though.  Justice Scalia takes a straight First Amendment approach along the same lines the Supreme Court used in olden days to legalize pornography.  This is content-based regulation.  Strict scrutiny applies.  The statute fails that test (as statutes almost always do).  Justices Kennedy, Ginsburg, Sotomayor, and Kagan concur.

Justice Alito, joined by Chief Justice Roberts, concur in the judgment.  They would strike down the statute on due process grounds as too vague, leaving to another day what they see as difficult First Amendment questions regarding applying old rules to new technology.

Justice Thomas does not see the First Amendment question as difficult.  Speech to minors bypassing the parents is not within "the freedom of speech" protected by the First Amendment as originally understood.

Justice Breyer believes the statute passes strict scrutiny, and he appends a 15-page list of "peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games."

This should throw a wrench into the "justice agreement statistics."

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