FIRST ONE @ ONE FIRST

At Close Range

Posted in Case Reports by Mike Sacks on November 2, 2010

READER DISCRETION ADVISED:

THIS POST IS RATED “M” FOR MATURE.

FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.

First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench.  How close?  For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:

For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment.  And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.

Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother.  Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow.  His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent?  Comic books?  Movies?  Rap Music?  Bugs Bunny?

From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini.  If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.

But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry.  Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors.  At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism.  With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”

At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.”  But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”

Morazzini wasn’t destined to survive this onslaught.  Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech.  When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him.  Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.

Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument.  But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play.  Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty.  The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.

To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.

Graphic violence. There is a difference.  We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description:  Pour gasoline over them, set them on fire and urinate on them.  We do not have a tradition in this country.  We protect children from that.  We don’t actively expose them to that.

With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith.  Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:

And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?

Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest.  Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away.  Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.

Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground.  The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past.  And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.

The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning.  For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?”  But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.”  These are words of condemnation, not of endorsement.  They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start.  And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.

But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court.  Today, all that mattered was that more justices killed more of California’s law than they did its challengers.

Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice.  Said Sotomayor:

So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle.  Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

Just temporarily is right.  Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.

5 Responses

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  1. Federal Farmer said, on November 2, 2010 at 7:38 pm

    Bravo! Best post to date.

  2. Justin Graham said, on November 2, 2010 at 8:20 pm

    I read the transcript, and you did clear up a lot with regards to Kennedy. At first, it looked like he was saying sex and violence should be treated the same (though he did raise vagueness questions when grilling Morazzini), but apparently, he is willing to go the Black/Douglas route on obscenity. Unfortunately, I don’t see the rest of the Court agreeing here. Do you think he’ll write a concurrence, or join the majority?

    Another interesting observation is that we didn’t get a peep out of Thomas during either side’s arguments. Any predictions on which way he’ll go?

  3. John Thacker said, on November 3, 2010 at 8:12 am

    Another interesting observation is that we didn’t get a peep out of Thomas during either side’s arguments.

    He almost never speaks. He says it’s a habit he developed as a child in school (he grew up speaking Getchee/Gulllah, a sort of creole of English plus African languages, learned standard English later, and was mocked for his nonstandard diction), and that if he remains silent, almost always everything he wants addressed is addressed. He kind of views oral argument as theater; so does Justice Scalia, I feel, but Professor Scalia enjoys it.

    Any predictions on which way he’ll go?

    Thomas is pretty pro-First Amendment. He had a concurrence in Fox v. FCC where he said that the entire FCC regulation of obscenity on broadcast TV and radio (Pacifica and Red Lion cases) was unConstitutional.

  4. Wednesday round-up : SCOTUSblog said, on November 3, 2010 at 10:02 am

    [...] PCWorld (and here and here), MTV, Reason’s Hit & Run blog, McClatchy Newspapers, Forbes, First One @ One First, and Courthouse News Service have further coverage of the [...]

  5. [...] Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the [...]


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