Today Justice Breyer spoke at the Aspen Institute on a panel with Justice O’Connor, Larry Kramer, and moderated by Jeff Rosen. Justice Breyer made a few comments about EMA. There is no official transcript (yet), so what follows is my best attempt to transcribe what I heard (there may be errors).
On how he decided EMA, and whether he just followed popular, majority will.
Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.
In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.
That is something, not much of a restriction
I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.
Do you see the model? That does not have to do with whether video games are popular or not. It has to do with working out how the law is in that area. It is not definite. You are never certain because there are arguments on both sides. That is not a system looking to the public.
When asked if the studies he relied on had turned out differently, would he have decided differently, Breyer said:,
If the studies have come out the other way maybe I would have. That isn’t the same thing.
Asked about his dissent in Sorrell, Justice Breyer quipped:
I leave it to other people to discuss contradictions of their own opinions. I have enough problems discussing contradictions in my own.
And Justice O’Connor on originalism:
None of the language of the Constitution had been tested at the time it was adopted. They did a fantastic job. That doesn’t mean there can’t be tough issues today.