前代未聞
JUSTICE KAGAN: Well, so how do we separate violent games that are covered from violent games just as violent that are not covered?
MR. MORAZZINI: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether --
JUSTICE SCALIA: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can -- of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?
MR. MORAZZINI: Well, Your Honor --
JUSTICE SCALIA: Does he convene his own jury and try it before -- you know, I really wouldn't know what to do as a manufacturer.
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MR. MORAZZINI: But I also wanted to draw out the point that California's law really is not an ordinance that is directed to a plot of a game. It's expressly directed to games with essentially no plot, no artistic value. This is the helpful nature of the third prong of the Miller standard. So it really is only going after the nature of the game where the child is --
JUSTICE SCALIA: Excuse me. If it has a plot it has artistic value, is that going to be the test for artistic value? Anything that has a plot?
MR. MORAZZINI: That would be one factor to be considered, Justice Scalia.
JUSTICE SCALIA: Well --
MR. MORAZZINI: The nature of a plot.
JUSTICE SCALIA: One factor to be considered, sure. But you were not telling us that so long as it has a plot it's okay?
MR. MORAZZINI: No, Your Honor. As this Court held in the Jacobilus case, a single quotation from Voltaire on the fly leaf of an otherwise obscene work was not going to make that work non-obscene.
JUSTICE SCALIA: You can't have artistic videos that involve maiming and cutting off heads and eviscerating people, right, so long as its artistic it's okay.
MR. MORAZZINI: If the level of the violence just as an obscenity, if the level of violence causes the game as a whole to lack the artistic, it is a balance, Your Honor, just as it is with sexual material. Each aspect -- that is why violence and sex --
JUSTICE SCALIA: Artistic for whom, for a 5-year-old? What a 5-year-old would appreciate as great art, is that going to be the test?
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JUSTICE GINSBURG: Is there -- you've been asked questions about the vagueness of this and the problem for the seller to know what's good and what's bad. California -- does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there -- is there any kind of opinion that the -- that the seller can get to know which games can be sold to minors and which ones can't?
MR. MORAZZINI: Not that I'm aware of, Justice Ginsburg.
JUSTICE SCALIA: You should consider creating such a one. You might call it the California Office of Censorship. It would judge each of these videos one by one. That would be very nice.
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Heaven help me. Hide your kids, hide your wife, the apocalypse must be upon us, because today and today only, Justice Antonin Scalia is my personal hero.
MR. MORAZZINI: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether --
JUSTICE SCALIA: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can -- of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?
MR. MORAZZINI: Well, Your Honor --
JUSTICE SCALIA: Does he convene his own jury and try it before -- you know, I really wouldn't know what to do as a manufacturer.
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MR. MORAZZINI: But I also wanted to draw out the point that California's law really is not an ordinance that is directed to a plot of a game. It's expressly directed to games with essentially no plot, no artistic value. This is the helpful nature of the third prong of the Miller standard. So it really is only going after the nature of the game where the child is --
JUSTICE SCALIA: Excuse me. If it has a plot it has artistic value, is that going to be the test for artistic value? Anything that has a plot?
MR. MORAZZINI: That would be one factor to be considered, Justice Scalia.
JUSTICE SCALIA: Well --
MR. MORAZZINI: The nature of a plot.
JUSTICE SCALIA: One factor to be considered, sure. But you were not telling us that so long as it has a plot it's okay?
MR. MORAZZINI: No, Your Honor. As this Court held in the Jacobilus case, a single quotation from Voltaire on the fly leaf of an otherwise obscene work was not going to make that work non-obscene.
JUSTICE SCALIA: You can't have artistic videos that involve maiming and cutting off heads and eviscerating people, right, so long as its artistic it's okay.
MR. MORAZZINI: If the level of the violence just as an obscenity, if the level of violence causes the game as a whole to lack the artistic, it is a balance, Your Honor, just as it is with sexual material. Each aspect -- that is why violence and sex --
JUSTICE SCALIA: Artistic for whom, for a 5-year-old? What a 5-year-old would appreciate as great art, is that going to be the test?
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JUSTICE GINSBURG: Is there -- you've been asked questions about the vagueness of this and the problem for the seller to know what's good and what's bad. California -- does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there -- is there any kind of opinion that the -- that the seller can get to know which games can be sold to minors and which ones can't?
MR. MORAZZINI: Not that I'm aware of, Justice Ginsburg.
JUSTICE SCALIA: You should consider creating such a one. You might call it the California Office of Censorship. It would judge each of these videos one by one. That would be very nice.
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Heaven help me. Hide your kids, hide your wife, the apocalypse must be upon us, because today and today only, Justice Antonin Scalia is my personal hero.