Commonwealth Club Video Game Debate Footage

He seemed to draw a bright line: sex can be restricted, violence cannot. He made it a point that America has a history of censoring sexual material dating back to the Founding Fathers, but no such tradition of censoring violence. He was the first to jump in and attack California's attorney, and he did it the most consistently. He also seemed to help EMA's attorney when he tried to go off-track, saying "Careful, you don't want to argue that way." Sometimes justices will attack the side they want to side with to prove their arguments to their colleagues, but given Scalia's ferocity in going after Morazzini, sparring with Alito over originalism, and helping Smith when he went into dangerous territory, I didn't get a sense that he was trying to do that.

On the whole, I'm no fan of Scalia, and he's not the most First Amendment-friendly Justice, but in this case, he seems to have it the most right. I'm hoping he comes out with a powerful decision for us, and the other Justices side with him over Roberts who in the best case scenario will be backed into writing a concurrence.

Having read that, if the panelists' predictions are true, we will probably have a good news/bad news situation. Assuming the Court does strike down the law, the next area of immediate concern will be who will write the decision? Based on the manner of questioning and comments by the Justices, the best-case scenario will be that Scalia is the one who writes it. He was most critical, least impressed by California's arguments, and had the quote, "My problem is not with vagueness...well, I do have a problem with vagueness, but I also have a problem with the First Amendment." He is most likely to outright say that violence cannot be restricted the way sex can, and a law that tries to do so is blatantly unconstitutional. Others, such as Sotomayor and Kennedy, seemed to hang more on the vagueness issue, which could leave California open to craft a more defined, narrower law.

When the Chief Justice is not in the majority (first glance makes it look like Roberts will be inclined to uphold the statute, but I am going to set him aside for later), whoever writes the majority or decides who will is based on seniority, which Scalia has the most of.

Which brings me back to Roberts. It is actually better for us to get a 6-3 decision without him than a 7-2 decision with him. Unfortunately, we might get the latter. Some sources have speculated that Roberts is a bit of a sore loser, and if he knows he won't get the votes to support his side, rather than dissent, he will join the majority so he can take it upon himself to write as narrow a decision as possible. Which is why he can do more damage writing for our position than against it. He indicated that he would be amenable to upholding the law during oral arguments, but I am concerned that he may write the majority to take it out of the hands of Scalia, who would shut the door entirely on video game restrictions.