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.

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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

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TechnogeekMy third "dart" wound up hitting a Chinese website for soccer scores, and the fourth hit Pokemon.com. Not one of those had anything to do with white guys getting harassed because they're white guys.09/19/2014 - 8:56pm
TechnogeekFor the record, I actually tried "throwing a dart at the Internet", or at least approximating it as best I could by zooming in at random spots on internet-map.net. First hit was a perfume seller, and then some sort of insurance spammer.09/19/2014 - 8:56pm
Technogeek"While you could throw a dart at the internet and find a site where Gamers in General are being harassed, doxxed, hacked, just because they are being perceived as white males." http://www.youtube.com/watch?v=FopyRHHlt3M09/19/2014 - 8:47pm
Andrew EisenSarkeesian and Quinn continue to get harassed and attacked (with the majority of said harassment and attacks being about their gender) and so, the story stays in the headlines. If Wolfe gets swatted again, it will be in the news again.09/19/2014 - 6:56pm
Andrew EisenYou mean Wesley Wolfe? The swatting appeared to be over his DMCA takedown, not due to his color or gender.09/19/2014 - 6:53pm
ConsterSo Sleaker, what's the sand like?09/19/2014 - 6:53pm
quiknkold@CraigR. Spreading Misandry is not going to kill Misogyny. Its just going to fuel it. half the people supporting that arguement are mysoginists themselves. They just dont know it.09/19/2014 - 6:51pm
Sleaker@CraigR - there's nothing to get over. There's no issue here until someone does an actual study on harassment rates.09/19/2014 - 6:48pm
quiknkoldWe never said Gamers were the only victims. Yes, Anita and Zoe got a bad rap. Yes, Zoe's ex was way out of line. Do I disagree with them? Depends on the arguement. Did they deserve what happened to them? Hell Effing No.09/19/2014 - 6:48pm
Sleakerbut news outlets have a tendency to blow up and sensationalize it if the person can be desrcibed as a minority, maybe because it gets the hits. How long were the 2 recent swattings in the news for? 1 was a white male developer....09/19/2014 - 6:47pm
Craig R.Get over it.09/19/2014 - 6:46pm
Craig R.Gamers are just lucky that their behavior wasn't brought to attention of everybody else sooner, and gamers are pissy about that09/19/2014 - 6:46pm
SleakerIn fact, just because a few female developers every year get harassed doesn't make it systematic. As a whole developers are harassed by people.. Swatted, etc.09/19/2014 - 6:46pm
Craig R.And if you don't think misogyny and sexism is widespread, then you're living with your head buried in the sand09/19/2014 - 6:45pm
Craig R.Apparently it's the gamers who are the only victims from GamerGate09/19/2014 - 6:44pm
Sleaker@AE - 1 person getting harassed is a problem. But just because 1 person gets harassed for being a female developer doesn't mean it's a systematic problem or indicative of a whole demographic.09/19/2014 - 6:44pm
Andrew EisenI don't believe anyone said or even remotely implied that harassing anyone was okay.09/19/2014 - 6:41pm
quiknkoldGeneral are being harassed, doxxed, hacked, just because they are being perceived as white males. And what about the White Males who are victims. Its ok to harass them? Anita Sarkeesian gets a bomb threat yeah, but what about the others.09/19/2014 - 6:36pm
quiknkoldwhat about all the gamers who are being harrassed, Andrew. Why does it have to be just about the women in the industry. We have 2 women, and only a handful of accounts recorded. While you could throw a dart at the internet and find a site where Gamers in09/19/2014 - 6:35pm
Andrew EisenOkay, you're talking specifically about harassment of women in the industry. So... how many (or what percentage of) women have to be harassed before you'd consider it a problem?09/19/2014 - 6:27pm
 

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