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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E. Zachary KnightSleaker, my hyperbole was intended to illustrate the difference and similarity between direct censorship and indirect censorship.10/02/2014 - 11:07am
Andrew EisenOpen Question: Former IGN Nintendo editor Audrey Drake now works in the Nintendo Treehouse. Do you think it's important for IGN to disclose this fact in the review of Fantasy Life, a game she worked on? Should IGN recuse itself from reviewing the game?10/02/2014 - 11:07am
E. Zachary KnightSleaker, My thoughts on disclosure: http://gamepolitics.com/2014/09/25/what-your-gamergate-wish-list#comment-29598710/02/2014 - 11:02am
Sleaker@EZK - using hyperbole is a bit silly. I'm asking a serious question. Where's the line on disclosure as relates to journalistic involvement in the culture they report on?10/02/2014 - 10:59am
E. Zachary KnightSo a journalist reporting on general gaming news mentions a specific developer and their game involved in said news, and it is suddenly some nefarious conspiracy to hide a conflict of interest. I think someone is reaching for validation.10/02/2014 - 10:53am
Andrew EisenYes, imagine anyone insisting that two utterences of the phrase "Depression Quest creator Zoe Quinn" wasn't influenced by something happening in the future!10/02/2014 - 10:52am
Sleaker@Pap Midnight - So wouldn't it be any journalist writing about general gaming culture would need to disclose any and all links/ties to said general gaming culture to be ethical? Also @EZK to use you're own methodology, I'm still curious on the question10/02/2014 - 10:49am
KronoSure none of those are reviews, but it is positive exposure, which as illustrated by The Fine Young Capitalists, is pretty damn important for getting people to check out your work.10/02/2014 - 10:32am
Krono@Midnight and of course the article most people mention and insist was no way influenced by him being romantically involved only days later, and her friend beforehand here: http://goo.gl/xCzivK10/02/2014 - 10:29am
Papa MidnightThe term "lovers" might be pushing it given the apparent time frame, but I understand what you're saying. Even if they were friends at the time, then that may present impropiety. However, that calls for a Magic-8-Ball level of speculation.10/02/2014 - 10:26am
Krono@Midnight She was a guest on an RPS show he cohosted here: http://goo.gl/QxljSG10/02/2014 - 10:24am
prh99Personally I'd say her original piece on Bronies was far more ethically questionable. Though for different reasons.10/02/2014 - 10:20am
Krono@Midnight On the Grayson relationship? For starters it depends on how long they were friends before they were lovers. Nathan gave Depression Quest top billing back in this article: http://goo.gl/tqGsnW10/02/2014 - 10:20am
Papa MidnightIf said journalist, however, is placed into a position where they have to write about matters dealing with DICE, then yes, a COI is present and should be declared.10/02/2014 - 10:18am
Papa MidnightHypothetically, if a developer from DICE starts dating a tech journalist from CNN tomorrow, so long as said CNN journalist is not (in)directly involved in any editorial process regarding matters dealing with DICE, there's no need to declare a COI.10/02/2014 - 10:18am
Papa MidnightThere's no need for it. A declaration of a Conflict of Interest is only necessary in the event that the parties may be placed into a situation where the conflict may become a factor.10/02/2014 - 10:16am
Krono@prh99 It was after #gamergate. There was a post on r/games that called out the lack of disclosure.10/02/2014 - 10:12am
Papa MidnightKrono: If the purpose of such was to expose some conflict of interest, I am not sure what the purpose or end objective was. Specifically, said relationship had not produced any works positive or otherwise. Where's the beef?10/02/2014 - 10:09am
prh99I don't know, the update isn't dated. Also, actual attempt at deception or absent mindedness? "Never attribute to malice that which is adequately explained by stupidity"10/02/2014 - 10:06am
Krono@prh99 disclosed in an update after #gamergate noticed and called it out.10/02/2014 - 10:04am
 

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