The Supreme Court has agreed to
hear a case involving a California law, passed in 2005, prohibiting the
sale or rental of
violent games to anyone younger than 18. It defined such a game as one
that includes "killing, maiming, dismembering or sexually assaulting an
image of a human being" in a way that a reasonable person would find
appeals to a "deviant or morbid interest," is patently offensive, and
lacks "serious literary, artistic, political, or scientific value for
minors."
The Court recently struck down a law involving depictions of animal cruelty on the ground that it was overbroad. It intimated that a narrower law would be constitutional, but it suggested that the test for determining whether speech was unprotected was historical in character. That is, if it was not unprotected before, it will not be unprotected now.
I doubt that this historical approach will
stand up. I suspect that a number of justices signed Chief Justice
Roberts opinion for its results rather than for its selective exercise
in history-worship. Perhaps we will find out next term. The violent
video game case permits the Court to hold that our first amendment is
hermetically sealed off from conceptions of public morality other than
sexual morality. It would be fitting for this Court to so hold, fitting
-- but perverse.
cross-posted at religiousleftlaw.com
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