Supreme Court justice Kagan 'sweated' video game decision - Report

Elena Kagan says she struggled "mightily" to make up her mind in dispute over selling violent games to minors.

In late June, the United States Supreme Court sided with the video game industry in the case of Brown v. Entertainment Merchants Association. The court deemed that a law that sought to prevent retailers from selling violent video games to minors was unconstitutional by a 7-2 vote. Now, one of the justices siding with the industry is speaking out, saying she struggled "mightily" to make a decision.

Justice Kagan.

"It was the case where I struggled most and thought most often I'm on the wrong side of it," said Justice Elena Kagan at the Aspen Institute's McCloskey Speaker Series, as reported by the Aspen Daily News.

"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."

The Supreme Court's decision ruled that the law ran in opposition of the First Amendment. While Kagan did decide the law was unconstitutional based on this violation, she said this was no easy conclusion to reach.

"But I couldn't figure out how to square that with our First Amendment precedence and precedence is very important to me," she said. "I sweated over that mightily."

Continuing, Kagan said, "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."

For more, check out the Supreme Court's full decision (PDF), as well as GameSpot's extended feature coverage of the Supreme Court case.

Written By

Eddie Makuch is a news editor at GameSpot, and would like to see the Whalers return to Hartford.

Discussion

182 comments
Corrupted_Wolf
Corrupted_Wolf

@No_Intelligence Just found out that you replied back and thought since you took the time after 3 months to reply, I should give you the same courtesy. I'm not taking ANYTHING to extreme. it's called criticizing the stem of your logic. Any statements you make has a logical stem that can be applied to anything else derivable from that logical stem. That's why we need to be careful when we say things or have things written in paper. This is philosophy/law 101. With that said, I respect your opinions of your post up until the last 2 lines where it's just a childish comeback. Nevertheless, the logical stem of "you need to experience something before you can judge it" is in itself flawed. It does not matter whether it's coffee or making laws. We as humans can make judgments without experience - it's a necessity and an ability we have. Someone who never drank coffee can tell you that it's bad for you through experiments. Someone who never drank coffee can tell you which flavor he likes or dislikes based on other experiences. (i.e. Sam will not like an Americano because Sam does not like bitter things) Aside from whether or not I agree with the ruling or the torts of this case, I'm simply pointing out your logic is heavily flawed.

No_Intelligence
No_Intelligence

@Corrupted_Wolf You are taking things to the extreme. They are making laws, not just making a simple judgment like which flavor of coffee I'd like today. Don't you think they should have some experience before putting their foot down? It really doesn't take a whole lot for them to pick up a "violent" video game and play it for 15 minutes before making judgement. Also, if you think my previous comment was intellectual diarrhea, then you must have poor intellect.

cheater87
cheater87

@ GOR_TAK if this law was OK. Than stores would STOP SELLING VIOLENT GAMES to ANYONE!!!! Because they would be seen as obscene and vile by the government and stores would NOT want to stock them also due to fear of being fined a load of dough for a miss sell to a minor. So this would of banned violent games from every store in the US.

GOR_TAK
GOR_TAK

@twztid13 Who said ANYTHING about banning!?! There's nothing wrong with regulating games that have pornographic content like any other form of pornography. We all know where this is headed at the end of the day and the writing is already on the wall. There already exists video games that are purely "sex simulations" and other games that revel in their ultra violent content. These types of games should not be available to CHILDREN but should be readily to ADULTS. No one is banning them. HOWEVER we cannot merely trust stores to always do what's right of their own accord (not selling games to minors) therefore I have no problem with making it illegal to sell mature games to children.

twztid13
twztid13

@dawnofhero yeah, that's actually Dan Marino's jersey number, but thanks for playing. great way to judge people. if you must know, i'm actually 32 years old. since age is so important, why don't you tell me how old you are, then make a worthwhile response to the thread instead of repeating nonsense.

dawnofhero
dawnofhero

@twztid13 I don't have time for your comments anymore. I feel like I'm talking to a 13 year-old judging by your username.

twztid13
twztid13

@GOR_TAK pornagraphy has been proven to be harmful to a childs psche. no proof exists that games harm children. if that's the case lets ban everything for people under age. food is making them overweight...BAN IT, let 'em starve. it's too slippery a slope. do your research.

twztid13
twztid13

@dawnofhero it's not that simple, because alcohol & cigarettes are illegal & if people under the age of 21 & 18, respectively, use them...they GO TO JAIL!!!! there you are, back at square one!

Vambran
Vambran

Justice Kagan can sweat all he/she/it wants. Video games are a Multi-billion dollar a year industry. If you mess with that, get ready play ball with some big players.

GOR_TAK
GOR_TAK

So is everyone here in agreement that pornography should be illegal to sell to minors? So why is it so unfathomable to to make it illegal to sell extremely violent and sexually explicit games to minors? No one ever suggested the game be censored or banned outright, just that they be strictly regulated to ensure that both adults can have access to mature games and minors be prohibited until they reach maturity. I don't see how this is such a hotly debated issue or controversy. Seems like a non-issue and a lot of hype and grandstanding by everyone.....the ESRB, the court, players, game developers etc. A lot of unnecessary chest pounding and ha-rumphing from all sides on a very simplely handled issue.

glhx1rush
glhx1rush

[This message was deleted at the request of a moderator or administrator]

GamerJedi29
GamerJedi29

@cheater2000 I agree with you, I'm not sure it would go as far as that, at least not for a long time.

dawnofhero
dawnofhero

@twztid13 Not all places are like that where they ask for ID's. And I'm not saying people should go to jail over a video game... just that some things should be withheld from minors in public places, like alcohol and cigarettes. I know that some will get away with using those products, but I'm just saying. If the kid's not old enough, don't let him through. Simple.

bigcrusha
bigcrusha

@deathstream As for wasting time and money, my argument simply referred to the fact that this subject should have never reached the hierarchy of supreme court to begin with. Why do I believe so? Simply because I stand by my previous argument. While this debate does not involve the subject manner of parental guidance, Countless studies have shown that parental guidance and discipline carries among the largest influence on child psychological development and behaviorism. Until ANY of the arguments stated within opposition to the subject show UNDENIABLE and IRREFUTABLE evidence that extensive violent gaming overrides psychological influence of parental guidance, these studies are POINTLESS. Why should minors purchasing violent games be an issue as long as parents keep a mental grip on that said minor? The solution is simple: PARENTS! GET MORE INVOLVED WITH THE LIVES OF YOUR CHILDREN, DO YOUR RESEARCH AND BE AWARE OF WHAT YOUR CHILD CONSUMES DAILY, FOOD, TV, MOVIES, TOYS AND GAMES! GUIDE THEM AND SHAPE THEM INTO MODEST INDIVIDUALS WHO CONTRIBUTE TO SOCIETY...

LtReviews
LtReviews

She agreed with the industry, but she didn't do it with a SMILE ON HER FACE!!!!! How dare she do such a thing! This case should have been solved in 2 minutes! I for one already reached my opinion between right and wrong within 30 seconds of reading this article! I didn't even have to bother reading through the 30 page PDF! I'm just the smartest person aliiiiive! (Note the sarcasm above) This is a complex issue. The Supreme Court rejects the vast majority of cases sent to it to the lower courts, to avoid setting sweeping precedents. A case only gets to the Court, if skilled lawyers have already been arguing and sweating about it. So why would the Supreme Court take a decision lightly, when it is by definition, a case that has not been taken with ease?

0ceI0t
0ceI0t

I think it should come down the the parents on this one. Don't buy it for you kids if you don't want them to play violent video games.

twztid13
twztid13

@gameking5000 get rid of her? there go those violent video games making you hostile (unless you weren't aware that supreme court justices have lifetime appointments).

twztid13
twztid13

@dawnofhero that's what would happen if this law was upheld by the supreme court. there already is a system in place like that. gamestop & the like asks for ID when you buy an M rated game. that's exactly what happens at a movie theatre. what more do you want?

dawnofhero
dawnofhero

@twztid13 I KNOW THE TICKET HOLDER DOESN'T GO TO JAIL!!!! I didn't say that's what should happen! The only thing I would want to see is some practical rules enforced here, i.e. If you're not old enough, then you can't see/buy that particular product that has an age rating on it. I didn't say the seller should go to jail, gosh.

atopp399
atopp399

This wasn't a hard decision at all based on the rest of media. She isn't very qualified if this took her more than 5 minutes to decide.

endorbr
endorbr

Video games, movies, books, and music do NOT make people do bad things. They may give bad people ideas but the certainly do NOT encourage, incite, or force anyone to do anything. Trying to say its the fault of the media we're exposed to is just like saying that guns kill people.

pokecharm
pokecharm

I didn't realise anyone used the word 'mightily' anymore...

Richardthe3rd
Richardthe3rd

@Keech I'm basically the same age, and I was never carded or asked for my ID, and I bought the game 3 times at various places. @ Corrupted_Wolf : In more contemporary times, that is correct. Almost every challenge to the First Amendment has the "Clear and Present Danger" safeguard applied from Schenck v. US ruling, which is a much more conservative test in regards to ruling speech unprotected. I'm guessing this was the safeguard applied. Prior to Schenck, precedence for 1st Amendment exclusion was the "bad tendency" test, which was slightly more liberal in determining speech that isn't protected, stating it only needed to "intend to incite" illegal activity. However, I still don't think the SC could have used this precedent to exclude video games from protection. Admittedly, the bad tendency test is very vague and generally not as easy to measure as C and PD. The bottom line is if the SC wanted to exclude video games from First Amendment Speech, they would have to forgo precedence and reinterpret First Amendment protection. I don't feel like the current bench would ever be willing to make waves like that, and in reality this probably isn't the case where they should. The reason I mentioned minors being excluded from 1st amendment protection is because that was basically what Thomas' and Breyer's dissent was suggesting... and honestly I think they may have had a point. It would have been a reinterpretation, but it might have been a reasonable one.

taddia
taddia

I can't believe we're still at this point: fightin about something like this was at least interestin 10 years ago. Now it's just stupid and pointless.

King-gamer
King-gamer

Children grow up to be bad because their parents don't raise them properly. Parents should be able to care of their children and don't need the government to do so. Parents who end up having bad children should stop blaming video games or anything else for it. It's their own damn fault. The media is there for years already, lots of people get expose to it every single day. Only a tiny fraction of the people end up bad, the rest are barely shaken by it. Who's to blame for this problem of violent people? Not video games. Perhaps these parents should stop being lazy and maybe try to pay more attention to what games your kids are playing. As far as I know, violent video games don't make people violent. I know because I've played Mortal Kombat on SNES when I was a kid. You don't see me wanting to rip someone's spine out....

gameking5000
gameking5000

@Kabaro If she didn't struggle then I'd consider perhaps getting rid of her. But it's only natural for her to struggle and think through this controversial issue.

BlackSquare
BlackSquare

If she struggled then she should not be a Supreme Court Justice. 1st Amendment, clear as day.

isshiah
isshiah

laws like these are for idiot parent'. if they paid attention to what their children were doing, these decisions wouldn't even need to be considered. my cousin has been playing +18 games since he was half that age. i think his parent's working all day every day has had a bigger affect on him that the games. not that giving them to a 9 year old is a good thing, mind you.

J4m3sR4n0r72
J4m3sR4n0r72

This is just one of the reasons why I can't stand politics and have no desire to become a politician.

Ultravile
Ultravile

"You can't stop insane people from doing insane things by passing insane laws... that's just... INSANE!" -Penn Jillette

manight
manight

who cares whats she thought or read or did. she voted for our side that is what counts. if not maybe next she will vote for the other side and we lose lets just keep our fingers crossed huh!!!

manight
manight

who cares whats she thought or read or did. she voted for our side that is what counts. if not maybe next she will vote for the other side and we lose lets just keep our fingers crossed huh!!!

ChaosUndivided
ChaosUndivided

Another case of idiots trying to tell normal people what they can and can't do. Where do politicians get these stupid ideas. Did something so bad happen in there miserable lives that makes them want to make ours lives just a miserable. They make up so many stories that they start to believe the crap that comes out of their mouths and stand so strongly behind false statements. We don't need a group of highschool losers telling us what to do cause they had no say in school. You will find that most gamers are more intelligent than any politician.

manight
manight

I have all kinds of video games and they have no effect on me. But I do see why people would want a law to protect children from violent video games. But that is why we have the esrb and why we get carded in stores when we buy video games. So why even make a law when we already have so many rules.

GameMaster-LN
GameMaster-LN

up yours Kagan!!! maybe she was the classic looser in games when she was young

la-leyenda
la-leyenda

"the kind of effects these extremely violent video games have on young people." There are none. You're a dumb cow. Look at the research.

cheater87
cheater87

@GamerJedi29 If this passed than video games would be stripped of first amendment protection, censorship laws would pass NO problem, blood & gore, sex, nudity, guns, etc outlawed in video games. Entire game series banned from the country or state by state. GTA could be banned in Florida, COD banned in Alabama, Halo banned in Nebraska, Mortal Kombat banned country wide maybe even. Look at Australia we would become like them. With violent video games being outlawed and censored developers would not want to EVER make a violent game again and every game would be E or maybe... E10. THAT is what this law would of done if it was found constitutional.

dagrimmreepa
dagrimmreepa

@LtReviews - You're forgetting that there is a massive precedent already set, I cannot understand how the decision was hard when you have hella violent imagery on TV and in theatres all the time; it's not like we live in an idyllic society where everything is unicorns and rainbows. It's fairly obvious that games, like movies and music, are protected by free speech. The fact that this case reached the Supreme Court, wasting manpower and taxpayer money on an obvious decision, while there are so many other pressing matters, such as the economy, to worry about, is disheartening. Like I said, law is law, personal feelings are irrelevant - if the world was governed by emotion and not what could be reasonably described as a generous amount of common sense and logic (which, granted, sometimes is also far from perfect), we would have all wiped each other out by now.

dagrimmreepa
dagrimmreepa

@cachinscythe - No. Don't see it. The decision was easy because there is already a precedent: movies and music. Now, if we didn't have violent movies or music, then yes, the decision is difficult; however, there is no palpable difference between the various entertainment mediums other than the fact that one is a lot more interactive than the others.

TheBlackEclipse
TheBlackEclipse

@cachinscythe I suppose I can see your point. I suppose I was mistaken when I said that this would mean that the government was raising our children for us. I suppose what I meant to say was that the government was telling us how to raise our children, which really is none of their business unless the way the child is being raised is neglectful. I suppose I just disagree with the Idea of the government telling us what our children can and can't do. Frankly, I don't think that it should be up to them. Oh, and by the way, thanks for not cussing me out because we have different views on the issue like a moron =D

HaloPimp978
HaloPimp978

At least she thought about the constitution and made the right decision.

LtReviews
LtReviews

@ghoward79 if she sweat over it, but still decided with the industry, isn't that a good thing? Did you read the court opinion? No, you didn't. The courts opinion said it was "empathetic" to the standard by which free speech restrictions were qualified by studies proving whether or not they are harmful, but in the end, stated that such studies shouldn't be taken as evidence in cutting speech, because they are too rigid to cover the amorphous area of human expression. Basically, the entire court said "even if it could be proven that video games are harmful, we wouldn't put restrictions on them" Kagan is the only one speaking out, but the court is filled with a bunch of Octogenerians who haven't played a game since Pong. Do you think any of them voted "yes" without any reservations at all??

ghoward79
ghoward79

yet, she's probably for the misnamed "fairness doctrine"

ghoward79
ghoward79

why'd she sweat over anything, it was a clear cut constitutional violation. Very easy, quit trying to be parents to our children.

LtReviews
LtReviews

@dagrimmreepa What?? She agreed with you, but she didn't do it with a smile on her face?! And *I* didn't agree with you saying she is stupid because she didn't come to the same conclusion the exact same way you did. Clearly you are right to call people "retarded" for disagreeing with you. Your defense of free speech is admirable sir. May people who disagree with you (or agree, but with a different degree of certainty) be struck by lightning and killed!

Ovirew
Ovirew

I can understand why she'd be uneasy about siding with it. Violent video games have always been a touchy issue, and it's easy to get fingers pointed at you for your support of them when a violent game comes under controversy. Of course, you can see violence and other adult content anywhere - on the Internet, on TV, in movies, on the radio - in varying degrees. And there's no way to completely block that stuff out for little ears. Besides, they have to grow up and form their own opinions sooner or later.

GamerJedi29
GamerJedi29

@Septillize If this law passed, it wouldn't change a goddamn thing. The kids would still get the game somehow

jace78
jace78

A video game made me do it!!!! Nuff said...LOL

faisaltm
faisaltm

I was raised in a family that always played Streets of Rage and Street fighter on SEGA in the past. I remember as if it was yesterday really fighting in school and doing a Hadookin on one of my friends, I was at second grade. I think this prevention should be taken seriously!

wwlettsome
wwlettsome

Another fine example of how the powers that be have no idea what they are doing. So busy wanting to protect us poor sheep from our shadows while they continue to destroy the country. Very depressing that our national narrative has become the plot of a poorly written video game.