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Will “Postal 2″ Create a New First Amendment Exception?

There has already been an interesting consensus that the Supreme Court was skeptical of California’s violent video game law.

Due to the long line, I missed the first 10 minutes or so of California’s argument for the law but was there for the remainder. After reviewing the transcript, I still have a slightly different take.

First, I think that Justice Scalia likes violent video games, or at least certainly doesn’t think there can or should be an exception to the first amendment around violence and children. For many others on the court, I’m not so sure.

Breyer seems to think that the usual first amendment scrutiny shouldn’t apply to the notion of violent speech as it relates to those under 18, and that it should be a simple balancing test. He appears to assume that there is a problem to support the state’s side of the balance.

There also seems to be a surprising level of support from the justices for a law, more narrow than this one, but one that allows states to restrict access to some violent video games. That’s troubling as it really impacts the shift of video games away from retail and into the online channel as we explain in our amicus.

That said, it does appear that there is enough skepticism about the reach and vagueness of this law that we’re not going to see that exception fully carved out here. Per Justice Sotomayor, players in Star Trek Online can sleep soundly tonight knowing that they can torture and maim all the Vulcans they want to…

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