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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Should ‘sexism’ factor into a video game’s rating?:

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Andrew EisenNo but it is defaulting to a very low volume. Not muted though.11/20/2014 - 10:14pm
MaskedPixelanteIs anyone else experiencing this weird Youtube glitch where, no matter what you had the volume set at last time, it defaults to muted no matter what?11/20/2014 - 10:07pm
MechaTama31What was wrong with Remember Me? I liked that one... >.>11/20/2014 - 8:50pm
AvalongodI tend to see the violence and sexism issues as different. Historically we know that the violence issue is overblown. But sexism is real. Better representations of women in games WILL happen.11/20/2014 - 7:35pm
Andrew EisenAnd unless I completely missed it, there's nothing in there about "how Pokemon in general is sexist but you gotta look deep for it."11/20/2014 - 5:10pm
Andrew EisenSeriously, you're upset, irked and fearful over an opinion piece that suggests the Pokemon demo would be better with more options and a better-written female character? SERIOUSLY?!11/20/2014 - 5:07pm
MaskedPixelantehttp://gamasutra.com/blogs/PugetAlain/20141118/230420/Nearly_Ripped_off_to_death_by_a_publisher__Get_better_by_yourself_and_wait_for_justice_Maybe.php Topware screws over an indie studio because they can.11/20/2014 - 5:01pm
Andrew EisenAre you SURE you provided the right link?11/20/2014 - 4:59pm
prh99And yeah that sucks, especially when bonuses are tied to it, but that is more a problem with crappy publisher policies and scoring in general than any discussion on what may or may no be sexism in games.11/20/2014 - 4:59pm
prh99But no one is on their legislative high horse or on the litigation war path, for that matter. The biggest effect is that a reviewer might give it a lower score and drag down their meta critic ranking.11/20/2014 - 4:56pm
Wonderkarpyup11/20/2014 - 4:51pm
Andrew EisenOh for crying out loud. Wonderkarp, I apologize for how rude this question is but seriously, did you actually read that article?11/20/2014 - 4:47pm
Wonderkarpits a stigma. people in power hear this crap and start getting on their legislative high horse. but I feel like we've already paid too much attention too a demo.11/20/2014 - 4:46pm
Andrew EisenHarm gaming how?11/20/2014 - 4:35pm
Wonderkarpcause it gets parroted around and is used by people to harm gaming like Jack Thompsons did with Violence. http://www.themarysue.com/pokemon-oras-sexism/ here's the article.11/20/2014 - 4:28pm
Andrew EisenNo idea why such an opinion would upset or irk you so I'd be interested in reading it. Got a link?11/20/2014 - 4:13pm
Wonderkarplook deep for it....reaching much. those kinds of people are what urk me.11/20/2014 - 4:07pm
WonderkarpI got upset the other day when a known feminist blog wrote a large article on how the demo to Pokemon Omega Ruby was Sexist cause you couldnt play as a girl. It was a Demo....who cares? but they went off on how Pokemon in general is sexist but you gotta11/20/2014 - 4:06pm
Andrew EisenHere's the panel that Sarkeesian quote from earlier comes from. Amazing what the proper context does, isn't it? https://www.youtube.com/watch?v=e0qxtKz2vZw11/20/2014 - 3:32pm
NeenekoSomething to keep in mind, we tend to look at physics as 'hard', but math and physics are trivial compared to soc/psych (I have worked in both), but FEELS like it should be simplier.11/20/2014 - 3:17pm
 

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