I think it's time for a video game pitting armed men and women in black robes against one another. We could call it Battle Judiciary, or High Noon on the High Court. Only law nerds would play it, but hey…a lot of them have cash.
You could model it on the Wisconsin Court, which seemed to be rehearsing recently. My colleague emeritus, David Newquist, is on the case.
During the week preceding the release of the decision, sources inside the court say that Prosser became so enraged at another justice over the proceedings that he grabbed her by the neck. The incident is under investigation and has been reported in the Milwaukee Journal Sentinel and the Wisconsin State Journal.
I would point out that "sources inside the court" also dispute the above account: Christine Schneider, writing at The Corner.
According to one witness, Bradley charged toward Prosser, shaking her clenched fist in his face. Another source says they were "literally nose to nose." Prosser then put his hands up to push her away. As one source pointed out, if a man wants to push a woman who is facing him, he wouldn't push her in the chest (unless he wants to face an entirely different criminal charge). Consequently, Prosser put his hands on Bradley's shoulders to push her away, and in doing so, made contact with her neck.
As far as I can tell, not a single person willing to be named has spoken to the press. This looks like a case of "it got angry, then it got crowded," as we used to say back at Jonesboro High School. Regardless of who advanced on whom, both of the combatants should be sent to their chambers without their supper.
If High Noon at the High Court is produced (maybe my friend Terry in California will do the programming!), minors will be able to buy it in California. From the LA Times:
The Supreme Court ended its term with a vigorous defense of free speech, striking down a California law that banned sales of violent video games to minors and effectively shielding the entertainment industry from any government effort to limit violent content.
The U.S. Supreme Court, God bless its honorable butt, remains steadfast in its commitment to free speech.
In Brown v. Entertainment Merchants Association, the Court applied strict scrutiny to the California law. This is a court-generated device that would, in principle, allow a government to violate a constitutional prohibition if the government had a compelling interest in doing so and there was no other practical means of satisfying that interest. In practice, fortunately, almost nothing ever survives strict scrutiny.
The Court recognizes that free speech protection extends to entertainment, on the grounds that ideas, and especially political ideas, are frequently expressed in such media. Jon Stewart can breathe a sigh of relief.
There are exceptions to free speech protection in the Court's record: threats to public officials, fighting words, obscenity, etc. The Court found that there was no first amendment exception in its record for depictions of violence, whether distributed to minors or not. In general, speech directed to minors (religious or environmental propaganda, etc.) has the same protection as speech directed to adults.
Eugene Volokh has an excellent summary of the decision, with more detail than I provide here. I note with interest that the 7-2 decision split in an entertaining way. Scalia was joined by Kennedy, Ginsburg, Sotomayor, and Kagan. Alito and Roberts wrote concurring opinions. Thomas and Breyer dissented. That is no party line vote.
The concurring opinions expressed a desire to craft a better piece of legislation instead of bluntly closing the door on any such project. Justice Thomas' dissent would empower the state to give the decision wholly to the parent.
The practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians.
This is a neat distinction. Under Justice Thomas' interpretation, only an adult could legally purchase a covered video game, though he or she could then give it to a minor. That would maximize parental control, but also raise the possibility that adults could be prosecuted under a similar law. Under the majority interpretation, it is up to the parents to police their children's purchases.
I have to admit more than a little sympathy for the Justices Alito, Roberts, Thomas, and Meyer's views. Consider this passage from Alito's concurrence.
The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in "ethnic cleansing" and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.
That is very nasty, no good stuff. Of course, that's the trouble with free speech. It means that very bad people can say very bad things, and we the people can't smash them for it. Public censure should come down on this sort of thing like a ton of bricks. Mom and/or Dad should keep a close eye on what little Joey plugs into his PS 3. Maybe the State of California has no business creating new categories of unprotected speech. I reluctantly cast my vote with the majority.