What About Free Speech?

     So, the Judicial is quickly becoming my favorite branch of government. The Supreme Court is like this awesome TV show, but real, with a bunch of random people in robes sitting around talking and scaring lawyers. On November 2, the oral arguments for Schwarzenegger v. Entertainment Merchants Association commenced. Basically, California is invoking some of the results of Ginsberg V. New York, a 1968 case which ruled that erotic material which isn't obscene may be harmful to children, and thus can't be sold to minors (this involves, like, soft-core magazines.) So, California wants harsher regulations of violence in video games, "restricting minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to [their] development" (from the transcript).
     As soon as Morazzini, California's lawyer, made that statement, the Justices leapt-- what constitutes "deviant?" Are gory fairy tales deviant? What about movies? Scalia, Gingsburg, Sotomayor, Roberts, and Kagan all seemed to be on the same page near the beginning of the case in regards to how vague the lawyer's statement was. They seemed to decide that any time a new technology is developed, or a new form of entertainment, people try to restrict it more (i.e., the proposed restrictions wouldn't pertain to film, but to those new-fangled video games). The Justices were also unsatisfied with how loose the term "minor" is -- what is okay for a 17-year-old differs vastly from what is okay for a 9-year-old. Justice Breyer insinuated that, despite the age issue, these violent video games (which is a very vague construct, since Morazzini only mentioned one game, and refused to regard the previously instated video game ratings system as a clear-cut separation of nonviolent from violent) have no artistic, political, or scientific value; it's only entertainment.
   This is very much a free speech issue; Justice Scalia said that he is concerned with not only the vagueness, but with "the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence." What is obscene -- are movies with people drinking or smoking obscene if shown to children? The First Amendment doesn't make exceptions; free speech is protected, and was instituted with the sort of unspoken sentiment that the general public would be able to figure out was was reasonable and what wasn't. Obviously, that turned out to be asking way too much of the general public, but the amendment remains as it is. But there's nothing about violent materials in the Constitution; Justice Alito joked, "I think what Justice Scalia wants to know is what James Madison thought about video games." (Scalia didn't get it. If this was a television show, he'd be like Stanley on The Office, the cranky guy who everyone plays little tricks on just because he never notices).
   Later, as Smith -- the EMA's lawyer -- presented the counter-argument, Justice Breyer brought up the sex/violence issue. He said how inane it is that a thirteen-year-old can't buy, like, a photo of a naked woman, but can buy a game with the premise of exploding people's heads or something. Violence and sex are treated differently; either both are protected by First Amendment, or neither are.
  Anyways, this case is extremely interesting and I will probably return to it and Snyder v. Phelps as the cases progress.