Last year, you may recall, the Court struck down a law that banned the sale of "crush videos" (they're gross, Google them yourselves, pervs!) on the basis that there is no free speech exemption for depictions of animal cruelty. And it's this ruling that California had to try most strenuously to overcome. I mean, if videos of ladies using their high heels to crush mice to death is protected then it's kind of hard to ban . . . okay, let's be honest here, I'm not cool enough to know any of the names of actual violent video games, except Grand Theft Auto, and surely the genre has advanced? So, here's the deal: When I say "Mortal Kombat" you change it in your brain to an actual relevant video game that you know about because you're a fucking nerd who gets a nerdboner while raping pixel ladies, okay?
California tries to get around this by saying that standards are different for minors (a key piece of yet another case) but, as Scalia pointed out then and in the today's opinion, that case dealt with obscenity: a class of speech that is wholly unprotected. There is some sort of half-hearted attempt to claim that violence is obscene, but that's not going to get one very far at One First.
And so, the Court delivered a FATALITY (ha ha ha ha) to California's law. Scalia, joined by all the ladies (even Anthony Kennedy!), delievered the opinion while Alito (who I really thought would vote to uphold the law) and the Chief filed a concurrence while Thomas and Breyer dissented.
You can read the opinion, and really you should, because while hardly as amazing as it could be, it's pretty great stuff. I mean, this part, in which Scalia attacks an argument made by Alito (who concurred in the judgment!) is wonderfully snide and hilarious and it's buried in a footnote!:
[Alito points out that] the “crush-video” statute at issue there might pass muster if it were limited to videos of acts of animal cruelty that violated the law where the acts were performed. There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable.
He also writes a brilliant and lengthy footnote tearing apart Justice Thomas for his view that minors possess no First Amendment rights at all.
But the best section of Scalia's opinion is his thorough and masterful demolition of the idea that our culture has historically restricted minors' access to depictions of violence. He starts off with Cinderella's stepsisters getting their eyes pecked out and then on to the AP English syllabus with relentless emphasis on the gore and guts:
Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
Next he tackles California's argument that "interactivity" makes video games special. And that's when Scalia trots out a reference to his very favorite book:
The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugar-cane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to.
But, lurking behind all this talk of warped minds, desensitization to violence and interactivity, is a much more real threat to the First Amendment. And, seizing upon Justice Alito's lengthy description of what Scalia calls "disgusting video games", he lets loose with what I think might be one of the best denunciations of the anti-video game crowd ever penned by a dude in his 70s:
But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.
And he has scant patience for the "research" showing children react violently after being exposed to depictions of violence:
One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.
The dissenters, and Alito in his concurrence, really got nothing compared to Scalia's sweeping and unrelenting attacks. But that passage of Alito's Scalia was referring to really is pretty awesome. If I was the producer of violent video games I'd use it in my ads!
Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.
New this Fall from VideoFag, creators of "Supreme Court Bloodbath" and "Sexy Prison Torture Pit" comes "By The Dozens" . . . Justice Alito raves: "Blood gushes, splatters and pools!"
PS: I couldn't quite find a way to slide this excellent quote into the above post, but it's one of my favorites! Echoing Sontag's famous statement that "if I must choose between Dostoevsky and the Doors, of course I choose Dostoevsky", Scalia writes in footnote 4: "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones."
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