Justice Sotomayor's questions suggested she was also against the California law. She asked, "Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music? Some of the original violent songs that have been sung about killing people? Why isn't that obscene?" She also displayed more than a passing familiarity with the tropes of video games. "Would a video game that portrayed a Vulcan, as opposed to a human being, being maimed and tortured...be covered by the act? What happens when the character gets maimed, head chopped off, and then immediately after it happens they spring back to life and they continue their battle? Is that covered by your act? Because they haven't been maimed and killed forever. Just temporarily."
On the other hand, Justice Breyer made it clear that he sided with California. Never inclined to restrict government power, Breyer bluntly asked the lawyer for the EMA "Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women.... If you want that for your 13-year-old, you go buy it yourself?"
Chief Justice Roberts and Justice Alito, both parents of young children, also seemed to support California's position. Roberts seemed to be most concerned with protecting children from violence in general. In response to Scalia's argument that there was no Constitutional tradition of regulating violent speech, Chief Justice Roberts responded, "We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they'll beg for mercy, pour gasoline over them, and urinate on them... We protect children from that."
Alito, meanwhile, focused particularly on the special nature of games. He argued that "We have here a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. To say...because descriptions in a book of violence were not considered a category of speech that was appropriate for limitations at the time when the First Amendment was violated is entirely artificial."
With three justices seemingly supporting the law, and three justices apparently wanting to overturn it, which way the court will rule is hard to determine. It will depend on how Justices Ginsburg, Kennedy, and Thomas swing.
Shaking my magic eight-ball, I predict that the Court will overturn this specific California law as being too vague and broad, but will explicitly leave open an opportunity for states to regulate games in other, more narrowly tailored ways. Which means it might be time for the game publishers of America to invest in more lawyers.
Alexander Macris is co-founder and publisher of The Escapist, as well as president and CEO of its parent company, Themis Media. He has also written two tabletop wargames, conceived and edited the book "MMORPGs for Dummies," and designed the award-winning web game "Heroes Mini." After hours, he serves as president of Triangle Game Initiative, the Raleigh-Durham area's game industry association, and runs a weekly tabletop roleplaying game campaign of concentrated awesomeness.