Originalism, the First Amendment, and Schwarzenegger v. EMA

November 2nd, 2010

There were some interesting discussions on the First Amendment in the context of Originalism in Schwarzenegger v. EMA.

Justice Scalia resisted the movie to exclude from freedom of speech “portrayals of violence.” Nino invoked the Framers of the First Amendment (even though the relevant provision is really the 14th amendment):

It has never been understood that the freedom of speech did not include portrayals of violence.
You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment. They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will.
But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay?

Justice Alito pokes some fun at Scalia (rightfully so):

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.
JUSTICE ALITO: Did he enjoy them?
JUSTICE SCALIA: No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there — there was an exception to it for — for speech regarding violence? Anybody?

LOL. This reminds me of oral arguments during McDonald when Justice Breyer inquired about James Madison’s “ordered liberty chart.

In response to a later question by Justice Breyer, Mr. Morazzini discounts any reliance on originalism, as he “find[s] it hard to believe and I know of no historical evidence that suggests that our Founding Fathers in enacting the First Amendment intended to guarantee video game retailers a First Amendment right.”

While questioning the attorney for the video game industry, Justice Alito notes that this is a new form of speech, not envisioned at the time of the ratification of the First Amendment.

JUSTICE ALITO: But we have here a new — a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. …
So this presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted. And to say, well, because nobody was — because descriptions in a book of violence were not considered a category of speech that was appropriate for limitation at the time when the First Amendment was violated is entirely artificial.

I question Justice Alito’s statement on original expectations ground. Think of Justice Scalia’s opinion in Kyllo v. United States. The framers of 4th amendment certainly did not contemplate heat signature scanners, but they did have general notions about privacy and reasonableness of searches. I am not sure why expectations governing books printed in the 18th century–which certainly included violence–cannot inform the constitutional analysis for video games. This distinction between reading a violent book and interacting with a violent video game is superficial. Anyone with a good imagination who has ever read a really engaging book can enter a world more realistic than any video game.