The Supreme Court heard opening statements in SCHWARZENEGGER V. ENTERTAINMENT MERCHANTS ASSOCIATION yesterday, in which a 50-ish page transcript was posted on their website.

The most complicated part of reading this is understanding just what exactly California wants out of this bill. In media and news articles, they say that the law aims to restrict the sale of violent video games rated M or higher by the ESRB, to minors. It’s been argued by the ESA, EMA, and other game and merchants organizations that this violates First Amendment rights. The lower courts have agreed, but it has finally reached the top, and it’s up to our Supreme Court justices to decide if it is or not.

What makes this transcript amusing is the type of questions and comments made by the justices during the opening arguments for both sides. Zackery Morazzini, the attorney representing Gov. Schwarzenegger and California, spent most of his opening statements arguing that the law aims to prevent the sale of violent games to kids based on the criteria in the game, as well as citing the various studies that have been done to determine if violent games cause children to inflict real violence on people. Justice Scalia came out of the gate in the beginning latching on to what was considered “deviant” in the context of a violent game. He likened it to “Grimm’s Fairy Tales” in what was established and not established norms for violence. What amused me about this part was his insistence on asking Mr. Morazzini what was so special about video games that warranted a special exception to First Amendment rights in publishing such a game. Most adults find video games to be children’s toys, and they cannot fathom just exactly how adult themes such as sex and violence have a place in a video game, something the other justices mention later on in the hearing. Justice Sotomayor even references Bugs Bunny shortly after, asking “One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?” She continues to say that cartoons offer no social value, to adults, which is exactly how they perceive video games also. Video games offer no social or educational value, it’s simply entertainment aimed at and developed for children and teens. This isn’t unlike other forms of media, such as cartoons, movies, television, and so on.

Shortly after, Sotomayor then brings into question rap music, and it’s influence on children and violence. Indeed, the genre of music, popular among blacks, hispanics, and younger audiences, many times preaches lyrics that involve sex and violence. However socially, it has been accepted as part of urban culture, and even though many dislike it, it does not get the same “rap” as video games. Video games with sex and violence are seen as gross and unnecessary, often even by the same adults who turn a blind eye to rap music or any other form of violence in media. By the end of Mr. Morazzini’s statements, the consensus was that the state cannot possibly target A: the type of violent game that fits the description they submit, and B: the age demographic these games are supposed to stay out of the hands of.

Paul Smith, the attorney for the Entertainment Merchants Association, opened contending that the state, knowing full well their bill should not be able to withstand a First Amendment challenge, was trying to re-write the amendment to grant them an exception. He also argued that the bill was nothing more than an attempt to censor works just like movies, television, books, and other form of media that ran into this issue before in court. The justices this time argued for the bill in the form of stating that perhaps parents do need help regulating violent media in their children’s lives. It’s very easy for a child to gain access to this type of content, even in the most well-regulated of family environments. Several of the justices noted how easy it is for a person to hack around protected content, and that is one of the reasons many games cannot be accurately rated, because modders can modify games to have things like nudity or the infamous “Hot Coffee” (which has been said to have been left in by the original developers, but some dispute it). Later on, Justice Alito asks “What if the State passed a — what if California took the list of video games that your association rates as mature and said there’s a civil penalty.” Mr Smith predictably cites the ESRB’s role in rating video games and that if the state is going to regulate which games are violent and which are not, then it amounts to a government takeover of a voluntary ratings system for the purpose of regulating video games sales according to what they perceive.

In my opinion, the state’s position makes little sense to me, which is why this bill is so badly constructed. Leland Yee constructed this bill, with or without Jack Thompson’s supposed involvement in it, to rid the industry of violent video games. He, and most other mostly-Democrat politicians who believe in “Nanny-State Politics” would rather the gaming industry ceases making any of these games for anyone and sticking to family-friendly games for children, because to them, games are for children and nothing more. Republican politicians are a double-edge sword, conservative-leaning business owners will balk against this bill because it hurts their bottom line– if popular violent games like Grand Theft Auto ceased to be made, their core business would disappear. However, typical conservative folks will probably see games as a “waste of time” that no one should be playing anyway, and probably wouldn’t be sad to see them go. The state clings desperately to questionable scientific studies about how violent games affect children when really, the studies are marginal at best. There is no doubt that violent media has the potential to affect people, especially children, but as one justice pointed out, children do not simply become violent after minimal exposure to violent material, it usually takes repeated viewings or a longer period of time for these effects to manifest. Not always, but usually.

It’s not our government’s job to regulate violent video games, or any sort of violent media today. We have voluntary ratings boards for film, television, and even other forms of media like music and some books. The ESRB has been operating for many years now rating video games and from my brief time working for Gamestop, it works. Parents are aware of the dangers of violent media, they saw Columbine, and they know that without values and supervision, impressionable children will fall through the cracks. But many children grow up in single-parent households, or no-parent households and foster care. They aren’t given the kind of attention needed. They are prone to violence and video games take their fantasies and extend them. We could stand better to be using the money being wasted on these bills, the lawyers, and everything and putting it back into education and social services to help our children and young adults understand how to separate fantasy from reality, and let retailers and local law enforcement deal with single cases.

I’ll be interested to see where the justices will go with this. What interests me is that liberal-leaning newbies Sotomayor and Kagan seem to be correctly questioning the validity of the state trying to circumvent the First Amendment. Many thought they would vote closer to their beliefs rather than objectively interpreting the Constitution, so it will be interesting to see how they rule in the end.

Bonus: The webcomic Virtual Shackles took note of one of Sotomayor’s remarks towards the last quarter of the hearing.