Justice Kagan Talks About Free Speech, Brown v. EMA

August 3, 2011 -

U.S. Supreme Court Justice Elena Kagan recently attended the Aspen Institute’s McCloskey Speaker Series, in Aspen Colorado. During a conversation with moderator Elliot Gerson, Kagan reflected on her experiences as a new Justice, the misconception that Justices don't like each other and the case she found the most difficult to rule on during this term. It turns out that the case she is referring to as most difficult was Brown v. EMA, commonly referred to as the California Violent Video Game Law."

Kagan told Gerson that this case was particularly difficult for her because she could see merit on both sides of the legal battle:

"It was the case where I struggled most and thought most often I’m on the wrong side of it," she said. "You could see why the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people."

Kagan said that it was easy to see what the State was trying to do and by all accounts it seemed like a reasonable effort. Her problem was with its constitutionality at the end of the day:

"But I couldn’t figure out how to square that with our First Amendment precedence and precedence is very important to me," she said about her vote to invalidate the law. "I sweated over that mightily."

Kagan highlighted the court’s position on the First Amendment and how it has been "extremely protective" of free speech:

"I think what you have to say, and people have been saying this, is this is a court that is extremely protective of the First Amendment and extremely protective of speech," she said. "There is no question the court has a very expansive view of the First Amendment."

You can read more of Kagan's comments on Aspen Daily News.

Posted in

Comments

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

"I know a place where the constitution doesn't mean squat!"

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

So in other words, maybe this bill WAS a good idea but the 1st Amendment was the ONLY thing stopping it? 

How about the bill was a stupid idea from the start? How about the bill actually hindered parenting? How about games DON'T have "the kind of effects these extremely violent video games have on young people."

Thank God for the 1st Amendment because people have to fall back on THAT instead of common sense.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

As Scalia said in the decision of the case, "disgust is not a valid reason to restrict expression". I'm sure many of the justices were horrified by some of the extreme violence in some these games, i.e. - Manhunt, Postal 2, ect. but in the end they are still protected by the First Amendment, as the whole point of the Freedom of Speech clause is too protect unpopular speech from government regulations and restrictions.

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

"But I couldn’t figure out how to square that with our First Amendment precedence and precedence is very important to me."

Notice what she says is important to her: precedence.  Not the First Amendment itself.

"This is a court that is extremely protective of the First Amendment and extremely protective of speech.  There is no question the court has a very expansive view of the First Amendment."

The way she says that, it sounds like she thinks the court is too​ protective of speech, has a too​ expansive view of the First Amendment.

Reading between the lines, it sounds like she would give the green light to censorship if she thought she could get away with it.  Splendid.  :/

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

You need to read between the lines after you study up a bit more on the concept of common law and in common law precedence is everything which is what creates the common part of common law. There is no legal precedence for censoring art for violence anywhere but there is precedence for censorship for other reasons provided it is limited for that specific purpose and nothing more like banning children from having access to pornography while leaving it legal for adults to buy it. What her interview tells me is that she does sympathize with what they were trying to do but was willing to set aside her personal opinions so that she could do her job the way she is supposed to and using the interpretations and limitations of the first amendment that precedence sets before her.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

Well yes.  In the US legal system, precedence trumps constitutional arguments.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

Yes, but precedence can always be over ruled by a future court or legislation from the government. So it is not the end all be all.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

The easiest, simplest, most obvious case is the one Kagen sweated over the most?  Man, that's frightening beyond belief.

"Her problem was with its constitutionality at the end of the day:"

And, you know, a few other niggling facts like the problem the law was aiming to fix doesn't exist, it would have done nothing to alleviate it even if it did, and it would be wholly infeasible and impractical to actually enforce if passed.

 

Andrew Eisen

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

Let's be fair: She joined Scalia's opinion which said all that and more.

On a legal discourse level, cases like this are always difficult for a legal mind to decide because there's no direct precedent of any kind.  There is now, though!

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

Reasonable effort?  There is nothing reasonable about censorship. ever.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

Hmm, if I'm reading right, I'm getting a "I may not like it ,but it is still speech and thus protected" vibe, which I may argue is the right way to look at this.

Re: Justice Kagan Talks About Free Speech, Brown v. EMA

I agree, and I'd actually like to see her on the parent groups' side of the debate, so that she could bring rational thought and they might actually see some of their goals accomplished. Because right now they go about it the wrong way, and the ESRB has been doing all the work to actually keep these products age appropriate.

Imagine if the groups that put thousands of dollars into promoting the law had instead promoted the ESRB ratings, and helped educate parents on how to make appropriate decisions based on the ratings and being involved. I think that's what Kagan would support and it makes sense.

-Austin from Oregon

Feel free to check out my blog.

 
Forgot your password?
Username :
Password :

Poll

Whose next half decade of superhero films are you most looking forward to?:

Shout box

You're not permitted to post shouts.
ZippyDSMleeConster:Some PSP games are 10-20$, you can buy a few then rip them yourself or find an ISO. The emu is PPSSPP.I'm I the only one that hates crisis core?10/31/2014 - 11:28am
ConsterZippy: uh, thanks? Don't know any PSP games, though.10/31/2014 - 10:10am
ZippyDSMleehttp://arstechnica.com/business/2014/10/fcc-reportedly-close-to-reclassifying-isps-as-common-carriers/10/31/2014 - 9:44am
ZippyDSMleesomewhat ammuseing, http://www.ultimate-guitar.com/news/general_music_news/metallica_ask_fans_for_help_with_two_new_reissues.html10/31/2014 - 9:25am
Neo_DrKefkaAnyone remember that portrait from Resident Evil 1 in the gallery about a Middle Aged man full of worries? Anyone know the name of that portrait?10/31/2014 - 12:45am
MechaTama31Yeah, don't see myself getting a Vita or a PSTV...10/31/2014 - 12:04am
E. Zachary KnightWatch Ultron ruin all your Disney childhood memories in this How The Ultron Teaser Should Have Ended. https://www.youtube.com/watch?v=ra1sBRLRFtc10/30/2014 - 9:23pm
ZippyDSMleeConster:they finally made a working worth while PSP emulator.10/30/2014 - 8:10pm
quiknkoldMechatama31, you can get VC2 on the Vita and Vita TV. you have to buy it through PSN on PS3 and transfer it to vita and then playstation tv. I have it on my PS TV and it works10/30/2014 - 7:15pm
MechaTama31I loved Valkyria Chronicles. Still super cheesed off that the sequels were PSP-only... :/10/30/2014 - 6:57pm
ConsterI played Steamworld Dig on the 3DS, and it's pretty fun.10/30/2014 - 6:51pm
Matthew WilsonRECOMMENDED: OS: Windows 7 Processor: Intel Core2 Duo @ 2.8GHz (or equivalent) Memory: 3 GB RAM Graphics: NVIDIA GeForce GTX 280 (or equivalent) Hard Drive: 25 GB available space10/30/2014 - 5:49pm
Matthew Wilsonhere hare the system requirements. make of ithem what you will. MINIMUM: OS: Windows Vista/Windows 7 Processor: Intel Core2 Duo @ 2.0GHz (or equivalent) Memory: 2 GB RAM Graphics: NVIDIA GeForce GTS 240 (or equivalent) Hard Drive: 25 GB available spa10/30/2014 - 5:48pm
Andrew EisenStill a game I really want to play. Hope it's a solid port.10/30/2014 - 5:42pm
Matthew WilsonValkyria Chronicles pc port needs 25ggb. not bad exept this game came out in 08 on the ps3.10/30/2014 - 4:56pm
james_fudgeEZK: my sarcasm senses are tingling ;)10/30/2014 - 4:21pm
Andrew EisenIf it's any consolation, Xbox owners, Wii U owners don't get the game at all. And if we did, we'd probably never get the DLC.10/30/2014 - 4:19pm
MaskedPixelantehttp://kotaku.com/destinys-new-dlc-kinda-screws-over-xbox-players-1652294153 Sucks when the shoe's on the other foot, huh.10/30/2014 - 4:12pm
E. Zachary KnightSo a vocational school in Oklahoma is being evacuated because someone found a briefcase in the bathroom. Imagine that. A briefcase ina school. That's unpossible.10/30/2014 - 3:33pm
prh99Also, Nintendo wants to watch you sleep..for Science! (*in best Cave Johnson voice) http://arstechnica.com/gaming/2014/10/nintendo-wants-to-watch-you-sleep-for-science/10/30/2014 - 2:47pm
 

Be Heard - Contact Your Politician