Updated November 3rd, 2010.
The law defines a violent video game as one that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being,"
"What about films? What about comic books?" asked Justice Ruth Bader Ginsburg. "Why are video games special?"
"Could you get rid of rap music?," Justice Sanya Sotomayor asked at one point, since the lyrics "talk about killing people."
According to Chief Justice John Roberts, "In these video games the child is not sitting there passively watching something. The child is doing the killing. The child is doing the maiming. And I suppose that might be understood to have a different impact on the child's moral development."
"Some of the Grimm's Fairy Tales are quite grim," Justice Antonin Scalia told an attorney for California. "Are they OK? Are you going to ban them, too?"
He had also wondered what the law would lead to.
"What's next? Drinking? Smoking?"
"I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech," he said. "It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment."
"Why shouldn't violence be treated the same as obscenity?," asked Justice Anthony M. Kennedy.
Scalia had insisted that since the founding of this nation, depictions of sex could be banned, but not violence or torture and questioned state lawyers how they would interpret the opinions of the framers of the 1st Amendment.
This leads to the most interesting of the arguments - Justice Samuel Alito argued against a historical approach to the law insisting that video games "are a new medium not envisioned at the time of the founding" and that it would be "entirely artificial" to come to a conclusion on this constitutional question based on a strict interpretation of the constitution as written as well as interpreting the views of the founding fathers.
Because the founding fathers never imagined video games, Alito seemed to lean towards support of restricting access to minors.
Alito's position is interesting because it appears to be a complete reversal from statements he had made last month during his "Let Judges be Judges" speech at the Manhattan Institute’s Wriston Lecture.
"Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two thirds of those polled said ‘apply the law as written'" noted Alito. According to Alito, judges "have no warrant to pursue a reform agenda that is not grounded in the Constitution, and they should not aim to be theorists or crowd-pleasers," yet it appears Alito is doing just that - pursuing a morality reform agenda based solely on theory.
The constitution is clear in the 1st Amendment in stating that Congress shall make no law prohibiting or abridging the freedom of speech but Alito has taken liberty with the "law as written" because video games simply did not exist at the time.
Conventional conservative wisdom opposes the concept of the Constitution being a "living document," and up until now it appeared Alito agreed. He argued that treating the Constitution as a "living document" rather then "as written" by the nation's founders would only endanger our freedoms by an overreaching judiciary, changing the constitution not by amendment process, but through judicial rulings.
Given Alito's response, it appears that he plans to legislate from the bench - his interpretation of the 1st Amendment in regards to video games seems to be very different from his interpretations when he voted on the Citizens United case earlier this year. Alito went far beyond the statutory dispute in the Citizens United case undoing decades of legal precedent to grant corporations pretty much the same 1st Amendment protections granted to people - like video games, modern corporate America was not envisioned by the founding fathers.
Defined in the Dartmouth College case of 1819, Chief Justice John Marshall stated that "a corporation is an artificial being, invisible, intangible, and existing only in contemplation of the law." How can an "artificial being" maintain the same rights as a citizen? Alito's ruling pretty much reverses almost 200 years of judicial standing - a move that seems to fall in the realm of activism. Alito's actions make sense being that Justice Marshall was a federalist and Alito a Republican - a political party that values stronger states' rights.
Alito's change of heart may also have something to do with his faith - Alito adheres to the conservative Roman Catholic church, indicating that he plans to judge just what exactly is morality, and from what it appears, Alito considers simulations of excessive violence to be immoral. This is a trait he shares with fellow Catholics and conservatives Scalia, Kennedy, Thomas, Roberts, and Alito, who overwhelmingly vote along party lines in regards to morality cases.
It is unclear just how the court plans to rule in the Schwarzenegger v. Entertainment Merchants Association case, although early indicators point to upholding the ban. Both Justices Kagan and Kennedy appear to be on-the-fence, but with the court weighted to the right, it is only a matter of time before they restrict sales.
As a side note, it is interesting that Governor Arnold Schwarzenegger, who signed the law in question and whose name appears as the plaintiff on the case, has been depicted in numerous "violent" video games, with many games depicting the former-action star in his famous roles such as the Terminator.