that the legislature determined can be harmful to the development -- >> what's a deviant, violent video game as opposed to a what? normal, violent video game? >> yes, your honor. deviant is parting from a established norms. >> there's established norms of violence. some of the fairy tales are grim to be truth. >> agreed, your honor. >> are they okay? are you going to ban them too? >> no. >> what's the difference? suppose being in a category of violate materials dangerous to children, then how do you cut it off on video games? what about films? what about comic books? what about fairy tales?

why are video games special or does a special principle extend to all deviant violent materials in whatever form? >> no, your honor, that's why california incorporated the three prongs of the miller standard. it's not just violence, it's violence that meets all three terms. >> i think that misses justice ginsberg's question. why just video games and not movie movies as well p >> we have evidence that the interactive nature of video games where the minor or young adult is the aggressor, is the individual acting out this obscene level of violence if you will is especially harmful to minors. >> do you have studies that show that video games are more harmful to minors than movyings are?

>> it's the study regarding violent video games as exemplary teachers. the authors not video games are not only exemplary teachers of pro-social activities, but exemplary teachers of aggression, the fundamental concern of the california legislature in enacting the statute. while the siensz is continuing to be developed and studies are released every month -- >> what was -- suppose a new study suggested that movies were just as violent, then presumably california could regulate movies like video games. >> well, your honor, there is scientific literature about the impact of violent material on minors. the congress and ftc and parenting groups have been concerned with the amount of violent media to minors. >> that's not answering the

justice's question. one of the anderson studies shows the acts of violence is the same for violent video. can the legislature say now we can outlaw bugs bunny in >> there are people who say the cartoon has little social value. it's entertainment and nothing else. >> this is entertainment. i'm not saying i like the video, the one you issued the five minute clip about. to me, it's not entertainment, but to some, it may well be. >> cartoons do not depart from the established norms of a level of violence to which children have been historically exposed to. we believe the level of violence in the video games -- >> that could have been made when movies came out. we had violence in grim's fairy tales, but never live on the

screen. >> your honor, that's the beauty of incorporating the three prongs of the miller standard into the law. this standard ensures that only a narrow category of material is covered. >> how is this any different than what we said we don't do in the first amendment field in stephens not looking at a category of speech and decide that some of it has moral value. we decide whether a category of speech has a historical tradition of being regulated. now, other than some state statutes that you point to, some of which are very clearly the same as those that we struck down, where's the tradition of regulating violence? >> your honor, california commits -- summits when the rights should be more flexible and recognize when the audience is minors, the

same standard shouted not apply, therefore, the question should not be whether or not historically violence was regular lated, but whether or not the constitution guarantees my yours of -- minors -- >> should we get rid of rap music? have you heard some of these lyrics in some of the original violent songs that have been sung about killing people and about other violence directed to them in >> i would agree -- >> the state -- >> i would agree it's egregious, justice, however -- >> why isn't that obscene in the sense you're using the world or deaf i can't. >> i'm not sure it's directly harmful to the minors in the way that video games can be. we know violent and sexual material appeals to a base instinct in especially minors. it's presented in a manner -- >> when you talk about minors, what age group are you talking

about? a video game manufacturer has to decide where its game stands. what age of a child should the manufacturer have in mind? a 17-year-old, a 10-year-old? >> your honor, i would submit just like in the context for minors similar to ginsberg those california's law has not been applied, consider minors as a whole and in california that's under 18 years old. they instruct minors -- >> how did they do that? isn't the average person thinking what's appropriate for a 17-year-old may not be appropriate for a 10-year-old or an 8-year-old? >> your honor, i think juries and judges do this every day in the -- >> the state of california doesn't do that. california has in big letters,

18, so it's not -- is it okay for a 7-year-old? is it okay for a 12-year-old? part of the statute requires labeling these video games in big numbers 18. it's 18 in california. does it make distinctions between 17-year-olds and 4-year-olds? >> justice, i think rightfully so. i think a jury would be charged with perhaps the standard of what the community believes an average minor, so the manufacturer would consider -- >> an average minor is halfway between 0 and 18? 9 years old. [laughter] >> fair point, justice scalia. i think a jury could be instructed to the typical age group of minors playing these games. >> why wouldn't you say a video game that appeals to the morbid

interest of those 18 or under, let's take 18, and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary artistic, political, or scientific value of those 18, that at least as to those you can't sell it without the parent. the parent can buy it, but the child can't. you can't tell a 12-year-old something that would be horrible for an 18-year-old. are we willing to accept that if necessary to make this okay on its face? >> justice, breyer, absolutely. >> could i take you back to justice scalia's original question about deviant violation? i read your briefs, and all i found you said is clearly covered by the statute and

presumably the statute applies to more than one video game, so what else does it apply to? how many video games? what kind of video games? how would you describe in plain english what morbid violence is? what you have to see in a video game for it to be covered. >> okay, justice kagan, i go back to the language of the statute, and the statute covers video games where the range of options available to the player includes maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence. i look to games where -- >> so anything that has those kinds of violence counts? >> no, then you move to the three prong of the miller standard, your honor. >> how do you separate violent games covered to violent games just as violence that are not covered? >> well, your honor, i think a jury could be instructed with expert testimony, with video game clips, and to judge for

themselves whether -- >> i'm not concerned about the jury judge, but the producer of the games who has to know what he has to do in order to comply with the law, and you're telling me, well a jury can -- of course, a jury can make up its mind, i'm sure. but a law with criminal penalties has to be clear, and how is a manufacturer to know whether that particular violent game is covered or not? >> well, your honor -- >> be his own jury and try it before, you know, a -- [laughter] i, i don't know what to do as a manufacturer. >> justice scalia, i'm convinced the video game industry knows what to do. they rate their games every day on the basis of vims, the intensity -- >> so what's covered here, the mature category and ratings, is that what the statute is meant to cover? >> i believe some ma clur rated games are covered, but not all. your honor, just like with

sexual material. we can trust individual panders of sexual material to judge whether or not it's -- >> let me make a comment on that point. it seems like all, or at least a great majority of the questions today are designed to probe whether or not this statute is vague, and you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there's an obvious parallel there. the problem is that for generations, there is been a societal consensus about sexual material, and sex and violence have been around a long time. there's a consensus about what's offensive for sexual material, and there are judicial discussions on it. now, those judicial discussions

are not precise. you could have had the same questions today with reference to an obscenity statute, and we have said that with reference to obscenity, there are certain materials that are not protected. those rules are not precise at the margin, and some would say not precise in a more significant degree as well, but you're asking us to go in an entirely new area with no consensus or traditional opinions, and this is -- and this indicates to me the statute might be vague. i thought you'd like to know that reaction. [laughter] >> justice, kennedy, as with the regulation of sexual material and obscenity, we had to start somewhere. california is choosing to start now. we can build a consensus as to what level of violence is in fact offensive for minors just

as the case law has developed overtime with sexual depictions. your honor, i believe the key is that the similarities violence has with sex -- this is material -- >> what about excessive glorification of drinking? movies that have too much drinking in it? does that affect minors? i suppose so. ion not concerned with the vagness, i am, but i'm concerned with the amendment that they can't bridge the freedom of speech, and it was understood that the freedom of speech does not include obscenity. it has never been understood that the freedom of speech did not include portrayals of violence. you're asking us to create a whole new prohibition which the american people never ratified when they ratified the 1st

amendment. they knew obscenity was bad, but what's next after violence? drinking? smoking? movies that shows smoking? can't be shown to children, will that affect them? i suppose it will, but is that -- are we to sit day by day to decide what else will be made an exception from the 1st amendment? why is this particular exception okay, but the other ones i suggested are not okay? >> well, justice scalia, i would like to highlight the fact the material issued in ginsberg was not obscene. the partial nudity allowed -- >> i think what he wants to know is what james madison thought about video games. [laughter] did he enjoy them? [laughter] no, i want to know what james madison thought about violence? was there any indication that

anybody thought when the first amendment was adopted that there was an exception to it for speech regarding violence? anybody? >> your honor, as for minors, looking at the historic statutes that were enacted in the past, there was a social recognition -- >> what's the earliest statute? >> pardon? >> what's the earliest statute and what's the enforcement? >> your honor, i don't know the earliest on the top of my head, but i believe they go in the early 1900s or later. i apologize. >> it's principle and it's been quite some years, hasn't it since this court held that one instance that courts, that the country legislatures can regulate are fighting words, and we regulate fighting words, don't we? because they provoke violence,

and the american psychological association and the american pediatric association says certain kinds of video games here create violence, then children are exposed. there's people who think to the contrary. there's two huge things of studies that think not to the contrary. all right. what are we supposed to do? >> well, justice breyer, i think in going back to justice scale yew's question, i find it hard to believe, and i know no historical evidence that suggest our founding fathers in the 1st amendment enacted to guarantee -- >> what justice breyer was asking because this court with respect to the fighting words in your face provoke immediate reaction. the court has been very careful

to cut that off so it doesn't have this spillover potential, so you didn't latch on to fighting words. you're analogy is to obscenity for teenagers as i understand it. >> yes. with regard to fighting words, the final interest in preventing acts of violence is different than the concern here at issue today. >> so, could i just make sure i understand that mr. morazzini because they gave up the argument the interest in the law is preventing minors don't go out and commit these acts themselves. instead the state says the interest in the law is in protecting children's moral development generally? >> justice kagan, we welcome that as an affect of california's regulation, but the primary interest with the

internal intrinsic harm to minor is is what the state of california is deeply concerned with in this case. >> a point of clarification. we talked about the labeling parts of this act. the circuit court struck those portions. you have now challenged that ruling. there are two sections to the act. one is a criminal act for selling to a minor, and the other is a requirement that you label in a certain way each video, and this say -- i think the kir cut said both were unconstitutional; correct? >> yes. >> your brief doesn't address the lailing requirements at all. >> we didn't. one holding on the 9th circuit hinged on the other. on the bid of the california's law, the restriction on sale the court found since it's not illegal to sell the games to 18-year-olds that the purpose

behind the label itself was in fact misleading, so under the case law, i don't have the case before me, but regarding lawyers advertising of services, the government can require a labeling so long as its necessary to prevent misleading the consumer. the 9th circuit found because they struck down the body of our law, that the 18 label would be misleading. >> that's an interesting concession on your part that the labeling doesn't have any separate from the restriction on sale. i would have thought that if you wanted a lesser restriction that you would have promoted labeling as a reasonable scrutiny restriction to permit the control of sale of these to minors, but you seemed to give that argument up all together in >> i didn't intend to concede

that the ninth circut's opinion was correct in any sense. >> you have conceded it by not appealing it, but okay, your case on labeling rises and falls on the sale to minors. >> at this point, i would agree, your honor. >> i gather that if the parents of the minor want the kid to watch this violent stuff. they like gore and may may like -- they may like violent kids, then the state of california has no objection as long as the parents buy the thing, it's okay. >> they are entitled to direct 9 upbringing of their children in the manner they see fit. it's important to the state of california that the parent involves themselves in these important decisions. >> that's basically all this is is a law to help parents? >> there's two fundamental interests served by this law,

yes, ensuring parents to involve thermses. california sought to have a barrier between a sales clerk and a minor with regard to violence like sexual material. california sees the developmental harm caused to minors is no less significant than that recognized by the court in ginsberg with sensitive material. the material issue -- >> i don't think there's a barrier in california to minor's access to sexual material? >> i believe california has a law, section -- >> california has a beginsberg law? >> yes. >> did you spend time enforcing that? >> i'm not aware, but there is a prescription on the sale of sexual material to minors. it's defined as harmful to minors similar to california's act.

in fact, california's act incorporating the three prongs of miller goes even further than the law at issue. >> is there -- you've been asked questions about the vagueness of this and the problem of the seller to know what's good and what's bad. does california have any kind of an advisory opinion, and office to review these videos and say, yeah, this belongs in what did you call it? deviant violence, and this one is just violent, but not deviant. is there any kind of opinion that the seller can get to know which games can be sold to minors, and which ones can't? >> not that i'm aware of. >> you can consider createing such, call it the california office of censorship to judge

each video one by one. that would be very nice. [laughter] >> your honor, we asked juries to judge sexual material, and it's appropriate for minors as well. i believe that if we can -- >> let the government do that? juries are not controllable. that's the wonderful thing about juries, also the worst thing about juries. [laughter] do we let government pass upon, you know, a board of censors? i don't think so. >> justice scalia, california is not doing that here. the standard is quite similar to that in the sexual material reel. . california is not acting as a censor. it is telling manufacturers and distributers to look at the material and judge for yourselves whether the level of violent content meets the prongs of the definition.

>> even if we get past what i on difficult questions of vagueness and interpreting this law, suspect there a less restrictive with a vie-chip? -- v-chip? >> your honor, that's the parental controls available in the new machines? >> yes. >> as we submitted in the briefing, a simple internet search for bypassing parental controls brings up videos on how to get around that. >> that doesn't work? >> i believe the v-chip is limited to television, mr. kennedy. could i reserve the remainder of my time? >> thank you. mr. smith? >> may it please the court, the california law at issue restricts the distribution of expressive works based on their content. california does not seriously

con tepid it did satisfy the usual 1st amendment statutes to the law. they are asking for a free pass to the 1st amendment that would deny constitutional protection to some ill defined subset of expressive works, and not just video games, but necessarily movies, books, and any other work that pore portrays violence in a way some court some way decide is deviant and offensive. >> what about the distinction between books and movies in the video games, the child is not passively watching something. the child is doing the killing. the child is doing the maiming, and i suppose that might be understood to have a different impact on the child's miranda rule development. -- moral development. >> it might, there's not a sled of evidence to suggest it's true. >> what was the state of the record that was present before the court in ginsberg?

>> they were aware on science on both sides that made a judgment that as a matter of common sense they could decide that obscenity even somewhat in large obscenity obscenity -- >> the court acted on common sense? >> yes, as long as there's science on both sides, in that particular area which is an exception that goes back to the founding. they field it was proper to adjust the -- >> if the material wasn't obscene, they were girly magazines, i imagine today's children they would seem rather tame, the magazines involved, but they were definitely not obscene with respect to doesn'ts. >> your honor, that's true, but one of the things to recognize about the case is they didn't pass the material before the court. they said it is a somewhat larger definition of -- >> we're talking about common sense. why isn't it common sense to say that if a parentments his 13-year-old child to have a game where the child is going to sit

there and imagine here's a torturer and impose painful, excruciating, painful violent on small children and women for an hour or so, and there's no social or redeeming value, it's not artistic or literary, ect., why isn't it common sense to say the state has the right, parent, if you want that for your 13-year-old, you buy it yourself which i think is what they are saying. >> well, your honor, the state has have to -- >> it does have a reason. i looked at the study, perhaps not as thoroughly as you, but it seemed to me that dr. ferguson and dr. anderson are in a disagreement, not that much actually, but they've looked in depth, you know, in a whole lot of video games, not movies or other things, video games. and both groups come to the conclusion that there is some tendency to increase violence and the american psychological

association, the american pediatric association signed on to a long list on i think it's the anderson side that this does hurt children. i have to admit that if i'm supposed to be a sociological expert, i can't choose between them, but if a legislature has enough evidence to have harm, the answer is yes. >> it's whether parents need help to exercise their role -- >> yes they need help because many parents are not home when their children come home from school. many parents have jobs, we hope, and when their children are there, they do what they want, and all this says is if you want that torture of let's say babies, make it as bad as possible, what you do, parent, you buy it. he's 13 years old. what's the common sense or

science of that? >> two aspects. with respect to parental controls, there's a series of things parents have available to them and are using today to deal with any concerns they have about what's appropriate -- >> any 13-year-old can bypass parental controls in 5 minutes. >> that is one element of about five different elements, your honor. in fact, talking about them, there is the ratings. parents are doing the purchasing 90% of the time. the child brings the game home and the child can review it. the game is played on the television or computer. think harm is supposed to take place over a period of years, not minutes. the parent has ample opportunity to supervise on what games are played in the house and there's control that is similar to the ones the court found to be significant in the playboy case and a variety of cases. >> how much do the videos cost?

>> $50-$60 when new. >> not too many 13-year-olds walk in with a 50 dollar bill. >> if there is kids buying without parental permission, they are very likely in the 16-year-old category. >> you're away from the common sense. if you're going back to the common sense of it, what common sense is there in having a state of the law, the state can forbid and says to the parent, the child, the 13-year-old cannot go in and buy a picture of a naked woman, but the 13-year-old child can go in and buy one of these video games as i've described. i've tried to take a bad of one i could think of, torture of children. okay, now, you can't buy a naked woman, but you can go and buy that, you say to the 13-year-old. now, what sense is there to that? >> well, there's various aspects of this that's important to understand. first of all the, violence is a

feature of works that we create for children that encourage them to watch throughout the history of this country. we have a very different sense of whether violence per se -- >> love is not something that people have tried to encourage children to understand and know about? i mean, what is the difference between sex and violence? both, if any? >> there's a huge difference. >> thank you. >> we do not -- [laughter] >> the difference is we do not make films for children in which explicit sex happens. we make films for children in which graphic violence. >> there's a difference. we do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over a head with a shovel so they are messyless and shooting people in the leg so they fall down. i'm reading from the district court and pour gas hen on them

and set them on fire. we protect children from that. we don't actively expose them to that. >> parents have been doing that. the question for this court is if you will create a new exception under the 1st amendment and whether if you're going to do it, you could figure out what the scope of that is. >> is it your position, i know this is a facial challenge, mr. smith, so is it your position that the 1st amendment could not prohibit the sale to minors of the video game that i just described? >> my position is that most people would think that's an inappropriate game for minors. we do not try to sell it to minors -- >> well, i know you don't, you're avoiding the answer. does the 1st amendment protect the sale of that video to minors, a minor? >> there is not a violence exception @ minors, and there should no be. >> your position is that the 1st amendment cannot, no matter what type of law whether this is vague or not, that the state

legislature cannot pass a law that says you may not sell to a 10-year-old, a video in which they set schoolgirls on fire. >> and the reason for that is there's no possible way to draw an exception to the constitution to the 1st amendment -- gr what is the state passed -- what is california took the list of video games that your association rates as mature, and said, there's a civil -- and you apparently don't want vend res selling those games to minors, isn't that right? >> exercising our -- >> you don't want that, and california said there's a civil penalty attached to that. >> what i do is transform the esrb, the private voluntary system that exists into the censorship commission that this court struck down in interstate circuit. when the government does that and you have to go to them for permission to allow kids into

movies or these it's a licensing authority thats 1st amendment allows. >> there's really no good reason to think exposure to video games is bad for minors, expoture to really violent video games is bad, is that right? >> it's important to draw a distinction between harm under the law and appropriateness. families have different judgment they make about their children at different ages and with different content and family values -- >> mr. smith, do they say that's a sufficient law to go guard? i understand the current studies dowght suggest harm, but are there studies that would be enough? >> well, i imagine a world where expression could transform to murders, that's not the way the miewm mind works, and here the reality is opposite. dr. anderson testified in the

record that the vast majority playing the games will grow up to be fine. he acknowledged the effects of the game are not different from watching cartoons on television or reading violent passages in the bible or looking at a picture of a gun. picture of a gun. >> you really don't this is what the state of california. >> we have a new media that could not have been envisioned when the first ammendment was -- amendment was ratified.

it is different to read a description, as one video, has, "what is black and white and red all over?" disposing your enemy in a meat grinder. >> doing it is a third thing. this presents a question that could not have been comtemplated -- contemplated when the first amendment was adopted. descriptions were not considered a category of speech approriate for limitations. >> we have a new medium, where people think all our children will become criminals. there were the crime novels, and

it started with comic books and movies in the 50's. across the streets, social scientists said half the juvenile delinquency came from comic books. weh av have television and rock music. >> do you think all video games are speech in the first instance? they are games taht people compete with. the first video game was playing tennis. how is that speech? >> these have narratives and plots. that is what the state is regulating. one person is hurting another person. they are doing it in a way that they find offensive.

going to separate video games into narrative and nonnarrative video games? >> we can seperate then to narrative and non-arrative? red images in them, that might be a closer case. >> well, what about a law that says you can't sell to minors a video game, doesn't care what the plot is, but no video game in which the minor commits violent acts of maims and killing. what about that? is that regulating speech? >> of course, your honor. >> it's not speech. saying you can't let the kid maim, kill -- >> i'm sorry -- >> or set on fire. >> what the lay would be directed at is not the plot, not the video game, itself, but the

child's act of committing murder, maiming, and so forth. >> the events of the video game, what happens in the plot is a come combination of what the game gives you and what the player adds to it. there's a creative aspect frpt other side referred to as a dialogue between the player and game. i submit both are protected by the 1st amendment just as a -- >> the person is speaking to the game? >> no, helping the plot and determining what happens in the events that acts on the screen like an actor. you are acting out certain elements of the play and contributing to the events that occur and adding a creative element of your own. that makes them different. >> your challenge is 5 facial challenge in >> yes, your honor. >> if you use the tests if there is one or any applications that satisfy the constitution, it

fails? >> the tests don't apply to the 1st amendment context. >> i thought we referenced them that last year in the stephens case, and why we didn't decide what applies because we adopted an approach that looked it over and said this statute is overbroad, and specifically didn't decide whether it could be applied in that case to cross videos. >> well, that's correct, your honor, but i think -- there's no argument here, i don't think, that if there's one game out there that this is constitutional applied even though it's unconstitutional applied -- >> well i understand the question, i think, is there games or minors, maybe a less violent game sold to that 17-year-old, but something like postal ii sold to a 10-year-old might well not violate the first amendment to apply that law to that. the way we approach the issue on

hunting videos say it's too broad to apply the law to everything, we strike it down, but we've opened the possibility that a narrowly drawn statute might pass muster. why isn't that a good approach in >> you could do that. certainly the key thing is you strike down this law because this law is broader than any one game. i would submit to you though there's no way in fact that anybody's going to be able to come back and draw a statute to gets who they they claim because the english level is not susceptible -- >> it's not susceptible. you've been arguing your point and that's fair and you have experts who favor you, and you make that point strongly, and your points a good one and serious one that it's hard to draw this line under traditional 1st amendment standards. but deal with their point for a moment, and i take it their point is there is nos new 1st amendment thing here. there is a category which really

are involving things like torturing children, ect.. maybe you don't like to sell them to anybody, you have an x or some special thing, but they exist, and they fit within a miller-type definition. they are much worse than the simple girly magazine involved there, and they will use traditional 1st amendment tests that is to say there is speech at issue, that speech is being limited. it is being done for a good reason, compelling interest, namely this problem with the x videos and the torture and bleeding it through, and there is no less restrictive alternative that isn't also significantly less effective, i want you to deal with that directly because what you've been doing for the most part is saying we'd have to be in some total new area, ect., but their argument is you don't have to be in a totally new area, ect..

apply traditional 1st amendment standards, and we win. that's their argument, and i'd like to hear what you have to say about that specifically. >> your honor, they do not suggest there's an existing exception to the 1st amendment applying -- >> this is not an exception. it is the traditional, strict, scrutiny 1st amendment test. >> well, they make a -- >> well, to get you to focus on it i'll say i made the argument. >> there you go. okay. [laughter] >> i think if you apply scrutiny here, it's not close to the showing required under the 1st amendment. first of all, they have not shown any problem, let alone a compelling problem, requiring regulation here. in a world where parents are fully empowered already to make these calls, where crime including violent crimes since the introduction of the game is plummeting in the country, down

50% since the day doom went on the market 15 years ago, in a world where parents are fully aware of what's going on in their homes and aware of the rating system and can use all the other tools # that we have talked about -- >> why couldn't you make the same arguments with respect to the obscenity? >> because obscenity didn't have strict constituteny applied to it. >> why shouldn't violence be treated the same as obscenity? >> we don't have the same history of it or pedigree of that exception, and as i was suggesting earlier, there's a fundamental difference in the facts. ginsberg works because we take everything explicit and say over here it's not appropriate for minors. violence would require you to draw a much different line between acceptable protective vims and unacceptable unprotected violence for minors, and given the lack of historical

pedigree and the nature of what you're trying to do -- >> wells courts struggling for years and year, with obscenity and we have the miller standards and the state has said this gives us a cat goir that we can -- category to work with reference to violence. >> you take out explicit sex and nudity, what do you have left? you have a structure with no apparent meaning. there's no way to know how a court would apply a standard like deviant viements, morbid violence, let alone decide which video games have a redeeming social, political, artistic value. the value of a video game is completely in the eye of the beholder. some say they are beautiful works of artistic creation. >> you can make that art with reference to obscenity sen ?i >> except that we know, we all know

at least with respect to ginsberg rmt obscenity is a difficult line, i acknowledge. ginsberg works well because if it has sex in it, naked people having sex in it and it's designed to be appealing to people's interests, you don't give it to minors, and you don't have a lot of cases out there about that. >> when you started ginsberg with something prescribable with regard to adults, and you know there is obscenity proscribed even to adults, where as in this case, i don't know there's such a thing as morbid violence which could be eliminated from ordinary movies. >> i think a little history is helpful here. this court has twice dealt with lawings attempting to regulate violent works in the past. one is winters versus new york with law applying to magazines and books, and the other was in

1960s the ginsberg came down and the city of dallas had an ordnance with a commission to review each movie -- >> let's be clear about your argument. your argument is that there is nothing that a state can do to limit minors access to the most violent sadistic graphic video game that can be developed. that's your argument. >> my position -- >> is it or isn't it? >> it could be applied and given the fact and record and given the fact is the problem is well-controlled and parents are empowered and there's alternatives out there gives basis to scrutiny satisfied. >> just to be clear your answer is at this point there's nothing the state can do? >> because there's no problem to be solved. the answer is yes, your honor. >> there's nothing -- >> there's plenty of proof

children go into stores and buy the games despite the voluntary rating system, the retailer restraint by some, there's still proof out there, and a lot of it that kids are buying the games, and there's proof that some parents as well-intentioned as they may or may not be, do not supervise that. starting from the proposition there is a problem, it's a compelling state need, why are you arguing that there is no solution that the state could news to address that problem? >> the existing solutions are perfectly capable of allowing this problem to be addressed aseeming it is a problem. >> it's 20% of sales going to kids. >> that's when they send out someone who is 16 to test the system. there's no record at all that kids are secretly buying the

games, bringing them into the home and playing it without their parents knowing. there's no evidence of that at all. >> could you have a law that says the state has to put, the dealers have to put the violent video games in a particular area of the video store? >> there's -- >> that is not, and you know, minors are not allowed in that area? >> well, what you're saying is you're going do have a limit on the ability of minors to buy them. >> yeah. >> i don't know how that differs from the current law, your honor. >> your answer to the first question of justice and chief justice was yes, that you are saying there's nothing they can do, so now am i right about that or am i not right? >> yes. >> i am right. >> okay, they can't say for example all the highest rated videos have to be on the top shelf out of reach of children. can they do that?

>> i think that's -- >> what about cigarettes? >> cigarettes are not speech, your honor. >> i know that cigarettes are not speech, mr. smith. [laughter] cigarettes are something we determined are harmful to children. the question is you say the record doesn't support the idea that these video games are harmful to children. some of us conclude that it does. >> well, the record doesn't support it. the record says that if you take the studies at face value that are not more harmful than watching cartoons. that's what the record shows. >> on that score, mr. smith, there is a study by the fcc and the question is whether violence can be restricted during the hours when most children are awake just the way pornography is. i don't remember what are the

hours, something like from 10 in the evening or -- i don't know, but didn't the fcc say, yeah, we could do the same thing for violence that we're doing for sex, except we don't think we ought to do it, but congress should do it. >> they spent several years coming up with a definition to allow anybody to figure out what violent tv shows have to be put into the adult category and which don't. they punted and said we have no idea how to do that. congress asked us to do it, and we can't, they gave it back to congress to get a definition. this is 5 difficult task to use language to differentiate levels of violence in a matter to some way tell people what the rules of the game are. even if you think there's a problem to solve, you need to think carefully whether or not you authorize the creation of a new rule authorizing regulation in the area when no one knows

the scope of it. >> you say there's no problem because 16-year-olds in california never have money available to buy a video game and because they never have tvs in their room and their parents are always home watching what they do with their video games and parents and the video games have features that allow parents to block access, to block the playing of violent video games which can't be overcome by a computer savvy, california 16-year-old. that's why there's no problem? >> what we're going to do is judge the law based on what 16 and 17-year-olds are getting and whether that would be harmful to them. i think the problem there is the line between 16, 17, and 18 is so fine you're not able to identify any real category of games that fits into that cat goir, and it's important, by the way, to note that california hasn't told us whether we should judge, 5-year-old, 10-year-olds, 17-year-old, if it's 5, that's

overrestrictive. if it's 17-year-olds it doesn't restrict anything. nobody can convince a jury that this is an 18-year-old game, not a 17-year-old. we draw that line in the death penalty, don't we? with you're over 18, you can be sentenced. we do it for drinking and driving. >> here's it's for expression what age they correspond to. you can't cut it that finely and say this is an 18 game and this is a 17 game. i don't think that works. if that's the test, the test justice breyer suggested it ought to be, then the statute restricts nothing. if the test is 5-year-olds -- >> maybe it's restricting torture, and if that what it restricted, why is that terrible? they expreemented with other things, maybe you could limit it to that. >> i think it's telling, your honor.

justice scalia in manufacturing a game you have to know the rules in advance. subject to hundreds of millions of dollars in penalties just for a game. >> you have your rules, so why wouldn't the first step be to follow your rules, your rules, the x things are limited to people who are over 18, we'll see if we get prosecutorred for a different one, and you might never. >> our rules don't help you at all. they say the only restricting a smaller seb set of n rated games which are appropriate for 17 -year-olds. these rates conflict with the ratings on the packages used by parents every day to make these judgments, so it's actually interferes. the prospect interferes with the information already on the packaging. >> thank you, mr. smith. you have four minutes,

mr. morszini. >> new games cost $60, but parents regulate and minors can't afford them and can access them. i wanted to draw out the point that california's law really is not an ordnance directed to a plot of a game. it's directed to games with essentially no plot, no artistic value. this is the helpful nature of the miller standard. it's going after the nature of the game where the child -- >> if it has a plot, it has artistic value? is that the test for artistic value, anything with a plot? >> it's a factor to consider. >> well, one factor to be considered, sure, but you're not telling us that so long as there's a plot, it's okay?

>> no, your honor. a single quotation from voltaire is not going to make that work nonobscene. >> can't have artistic videos that include maiming and cutting off heads, so long as it's artistic in >> if the level of the violence just as an obscenity causes the game as a whole to lack the artistic -- it's a balance like sexual material. that's why violence and sex -- >> forwhom? a 5-year-old would appreciate is great art, is that the test in >> again, those under 18 years old. >> you think mortal combat is prohibited by this statute? >> i believe it's a candidate, your honor, but i haven't played the game and been exposed to it sufficiently to judge for myself. >> it's a candidate means yes a reasonable jury could find that

mortal combat, an icon game that pass the clerks who work for us spend time in our -- [laughter] >> i don't know what she's talking about. [laughter] just by candidate i meant the video game industry should look at it, a long look at it. now, i don't know off the top of my head. i'm willing to state here in open court that the video game would be covered by this act. i'm guessing games in the brief like mad world is covered by the act. i think the video game -- >> would a video game that portrayed a voluntary as opposed to a human being being maimed and tortured, is that governed by the act in >> no, the act is only directed towards the range of options that are able to be inflicted on a human being. >> so, is the video producer says this is not a human being, it's an computer simulate the

person, then that doesn't -- all they have to do is put a little harder feature on the creature and sell the video game? >> under the act, yes. california's concern -- i think this is one of the reasons that sex and violence are similar. these are base physical acts we're talking about, justice. limiting, narrowing our law here in california, there in california, to violent depictions against human beings -- >> so what happens when the character gets maimed, head chopped off, and immediately after it happens, they spring back to life, and they continue their battle? is that covered by your act? they happened to be maimed and killed forever, this is just temporarily. >> i would think so. the intent of the law is to limit those minor's access -- >> you think so? isn't that feedback for justice scalia's question? >> well, your honor, this is a facial challenge.

this statute is not been applied or been construed by a state or federal court below, but -- >> thank you, counsel. th next, a look at who benefited from tuesday's election and after that, remarks by ralph reed. >> on friday, georgetown university hosted a discussion on midterm election results and what is next for democrats, but republicans and the tea party. congressman and former presidential candidate dennis this image, and journalist dan rather are involved. this is one hour 45 minutes. this is one hour 45 minutes.