The Breakfast Table

What’s the Originalist Stance on the V-Chip Again?

This morning is most likely the last of the term, and as we wait for the final four decisions to come down, I find myself wondering what Justice Sam Alito will do in his dissent—and I assume it will be a dissent—in the California violent video games case. As you will recall, when the state of California tried to ban the sale of violent video games to children under 18, the question for the court became whether such games represent protected free speech. It was immediately clear at oral argument that Justice Alito—the lone dissenter in last year’s U.S. v. Stevens, affording constitutional protection to depictions of graphic animal cruelty—wouldn’t protect these games either. Moreover, as he made clear at oral argument in the case, he has no reason to believe that the Framers would have envisioned protecting them. As he explained it, “We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. It is totally different from [print]. … One of these video games is promoted, “What’s black and white and red all over? Perhaps the answer could include disposing of your enemies in a meat grinder.”

This of course led to one of the most arresting moments of the whole term, in which Alito scoffed at Justice Antonin Scalia’s originalist argument that while the Framers would not have included obscenity in their understanding of protected free speech, they most certainly didn’t envision a prohibition on violent speech when they ratified the First Amendment. Alito’s critique of this line of reasoning at oral argument was this: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” To which Scalia, brusquely replied, “”No, I want to know what James Madison thought about violence.”

Your post Friday, Walter, on whether the Framers really believed a criminal defendant might “enjoy” cross-examining the witnesses against him, reminded me that I spent some time after that colloquy trying to figure out exactly what James Madison really would have thought of Mortal Kombat, Postal 2, Thrill Kill, and even Grand Theft Auto (or, at Stanford Professor Pam Karlan’s suggestion, Grand Theft Horse and Buggy). Nothing to be found on any of these games, Angry Birds, or even the idea of the idea of these games in the Federalist Papers, which may serve to explain why the opinions in this case have taken so long to produce. There is a wonderful old rabbinic story about Moses paying a visit to a very famous academy at which the Torah was being taught, centuries after his death. The upshot is that Moses couldn’t figure out what was going on in the lesson, even though it was he who had been given the Torah in the first place. That’s always the story that comes to mind when I imagine James Madison eavesdropping on an earnest conversation about whether working mothers can adequately supervise the video gaming habits of their young children in the absence—as Justice Kennedy noted at oral argument—of the television V-chip. Who knows what the Framers would have thought of any of this?

The legal news this weekend included New York’s decision to legalize gay marriage, Chief Justice John Robert’s objections to putting cameras into the courtroom; disputed reports of fisticuffs at the Wisconsin Supreme Court, and reports of increasingly draconian state abortion regulations. Whatever the Framers would have done with any of these questions is almost absurd to try to imagine. Well, maybe not the fisticuffs. Looking forward to your thoughts on today’s decisions.