David Gans makes several of the same points I did in his post at Balkinzation on Schwarzenegger v. EMA:
But, during Tuesday’s argument, Scalia took a different tack, repeatedly arguing that the California law regulating video games was contrary to the original intent of the men who framed and ratified the First Amendment. California’s regulation of violent expression in video games, Scalia urged, was a “prohibition which the American people never . . . ratified when they ratified the First Amendment.” Portrayals of violence, Scalia said, were understood by the framers to be part of the freedom of speech the First Amendment protected. For Scalia, that was the end of the matter.
Mocking Justice Scalia’s approach, Justice Alito shot back, telling California’s Deputy Attorney General that “what Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.” Alito pointed out that video games are a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to say that the framers meant to protect violent video games in which children act out violence because the framers would have accepted violent portrayals in books. Justice Scalia had no convincing reply.
As i previously blogged:
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.
We’re all originalists now, I suppose.