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updated 11/2/2010 12:24:08 PM ET 2010-11-02T16:24:08

The Supreme Court justices appeared highly skeptical of the State of California's arguments today that certain violent video games should be illegal to buy, questioning whether such exceptions would need to be applied to rap music and even Grimm's fairy tales.

The justices were hearing arguments in California vs. the Entertainment Merchants Association and Entertainment Software Association, a five year battle in the courts that so far has tilted in favor of the video game industry.

The court was full today for the gaming case. Oral arguments kicked off a little after 10 am ET, as the nine Justices took their seats at the bench in front of attorneys for both sides and a packed gallery. Press, including Kotaku, sat off to the left, near towering columns in the massive classical courthouse.

California Attorney General Zackery Morazzini started today's one hour session at the U.S. Supreme Court saying that the "deviant level of violence that is presented in a certain category of video games" requires legal restrictions to protect minors.

Morazzini's opening statement was almost immediately interrupted by Justice Antonin Scalia who pointed out that Grimm's fairy tales are very violent as well.

"So are you going to ban them too?" Scalia asked the attorney general.

Scalia, one of the court's most conservative justices and most vocal in questioning the state today, repeatedly and often with humor questioned Morazznii about the California law and its effects on the first amendment.

"You are asking us to create a whole new prohibition ... what's next after violence? Drinking? Movies that show drinking? Smoking?," asked Scalia in the hearing.

"I think what Justice Scalia wants to know is what James Madison thought about video games," Justice Samuel Alito joked.

No one attending ventured a guess.

While not as vigorous in their questioning, the court also pressed the video game industry's resistance to accept any law that would limit the exposure of children to a potentially harmful game. And justices questioned whether the industry would accept lesser restrictions such as requiring retailers to put violent video games on the top shelf.

Some justices wondered if there was perhaps a valid interest in protecting minors from hyper-violent games.

"Imagining a game that allows a player to torture babies," Justice Stephen Breyer asked. "Why isn't it common sense for the state to say 'Parents, if you want your 13-year-old to play it you have to buy it?'

While the justices did not betray intimate knowledge of playing games, some seemed familiar with the medium. Justice Elena Kagan at one point asked California if "Mortal Kombat" would be banned under California's law.

"Half of the clerks [in the Court] have spent a considerable amount of time playing it," she said.

"I don't know what she's talking about," Scalia quipped.

Morazzini said he wasn't sure about "Mortal Kombat" but said that "Postal 2," a game that was repeatedly discussed today would be banned as would violent Sega game "Madworld."

At one point justice Scalia asked how much games cost. He was told $50 to $60 by the gaming industry's lead attorney, Paul Smith.

To win a decision, California needed to convince the Court that they should allow an exception to the First Amendment for extremely violent content that could legally be blocked from sale to kids, matching a similar court-accepted carve-out for certain types of sexual content.

"What makes video games special?" Justice Ruth Bader Ginsberg asked. "How do you cut it off at video games?"

Justice Sonia Sotomayor questioned, "Could you get rid of rap music too?"

She said that she did not find a five-minute clip of a violent game California made available to the court "entertaining." But, she added, "That's not the point."

Kagan questioned whether the California law was too broad and wondered how one would define "morbid" violence. Scalia joked that California could start a "California Office of Censorship."

Morazinni said juries could determine what is too violent and, dismissing concerns that this could chill creative freedom and confuse game companies, pointed out that the games industry already does distinguish content through its own ratings board.

California tried to persuade the court that games are unusual — that the player, by interacting and triggering a violent act, is susceptible to different effects than they would be watching a movie.

The video game industry, led by Smith, tried to turn California's scientific evidence against it, noting that researchers were, at best, divided on the effects games have on kids. But Chief Justice John Roberts pointed out that the science had been divided on the effects of sexual content on kids when the Court allowed states to block the sale of some sexual content to minors.

Roberts and Breyer repeatedly questioned Smith on how the gaming industry could say that prohibitions against the sale of some sexual content to kids was OK but the same against violence was not.

What if a 13-year-old went into a store that sold a hypothetical baby-torturing game? "You can't buy a [picture of] a naked woman, but you can buy that?" Roberts said.

Smith tried to argue that the difference between sex and violence was that there had been a long American tradition regarding wariness of sexual content, but none against violence. It's not part of this country's cultural attitude to regulate violent content, he said.

Roberts rattled off descriptions from "Postal 2" — shooting people in legs, pouring gasoline on someone and urinating on them. These, he said, are not generally accepted behaviors depicted in the arts.

"We don't have a tradition for that," he said. "We protect them from that."

Justice Samuel Alito wondered if the gaming industry would accept a California law that simply applied penalties to games rated by the industry. Smith said he would object because such a law would turn the game rankings group, the ESRB, essentially into a government regulator.

Roberts said that the Court's recent refusal to allow a law to ban the sale of animal cruelty fetish videos was done so because the law was broad and proposed that a narrower law was not something the court had ruled out. Couldn't a narrow group of violent video games be blocked here?

Smith said the English language would not allow for clear distinctions between what is acceptable violence for children to see in games and what would not be.

The Justices tried to poke some other holes in Smith's argument, noting that the FCC tried to regulate when violent TV shows can be aired during the day and night and Roberts wondering if violent video games, supposing they are harmful to kids, could be legally required to be on a store's top shelf. He compared such a possible law to those against cigarettes.

"Cigarettes are not speech," Smith said.

"I know cigarettes are not speech," Roberts snapped. They are, nonetheless, he said, "deemed harmful to kids."

In 2005, California governor Arnold Schwarzenegger had signed into law a bill that would make the sale of exceptionally violent video games to children a crime subject to a $1000 fine. The video game industry pushed back, arguing that California's law violated First Amendment free speech protections. The gaming industry succeeded in getting the courts to block the Califonia law, as they had in other states where similar laws were planned, all on free speech grounds. Two tiers of courts sided with the gaming industry in California, unswayed by state officials' arguments that violent video games represented a distinct danger to the welfare and psychological wellbeing of children.

California has contended that extremely violent video games should be subjected to the same standards and tests that allowed the State of New York in the late 1960s to outlaw the sale of pornography to children. In that case, Ginsberg Vs. New York, the Supreme Court supported a state's right to block the sale of certain kinds of sexual content from children. The Court hasn't previously permitted any such law for violent content.

The California law would define violent video games subject to this standard as those that fail a version of the "Miller Test," a test for obscenity that defines a work as, among other things, lacking any "serious literary, artistic, political, or scientific value."

Heading into the hearings with the Supreme Court, the video game industry has been backed with briefs from the main trade groups behind movies and music as well as corporations such as Microsoft, rights groups such as the American Civil Liberties Union and the business advocacy group, The U.S. Chamber of Commerce. California has received the support of some sympathetic states but has seen no correspondingly large support from interest groups.

The Court agreed in April to hear arguments about this case. Its decision is expected before its summer recess in June 2011.

A decision by the Court in favor of the video game industry would likely end California's pursuit of laws against violent games and leave restrictions against games to the industry's ratings board and to parents.

A decision in favor of California would make video games the only type of media content in the United States that can be illegal to sell to children based on severity of violent content, a decision that would affirm that games have distinct affects on a young audience that other forms of entertainment do not — or that that the speech in games is not seen meriting the same protection as that in other media.

Follow Kotaku's coverage of this momentous case at our Schwarzenegger Vs page.

Send an email to Stephen Totilo, the author of this post, at stephentotilo@kotaku.com.

For more stories from Kotaku.com see:
Both Sides React To The California Game Law Supreme Court Hearing
Mario, Pokemon Represent Among Hundreds At U.S Supreme Court
All You Need To Know About This Week's Violent Video Game Case In The U.S. Supreme Court

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