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Over the past few weeks, there’s been a growing sense of anticipation and confusion among those who follow First Amendment law as the U.S. Supreme Court stubbornly refuses to release an opinion on whether states like California have the right to ban the sale of violent video games to minors. Will this be the week?
Nobody has any idea what’s taking the Supreme Court so long, but a decision is long overdue. Not only have the Supremes checked off every single case from their autumn term except the video game case (Brown v. Entertainment Merchants Assn), but the high court has already rendered decisions on most of its spring cases too.
Meanwhile, the case that made for a fairly entertaining oral hearing all the way back in early November remains unresolved, which has got some observers wondering what in the name of Lara Croft is going on: Is the vote so close that the justices are having a hard time finding a majority? Has Chief Justice John Roberts decided to take his sweet time authoring a potential landmark decision? Have the clerks become too distracted researching the history of video games?
The silence on this pertinent free speech issue is only more deafening thanks to the stakes. The Supreme Court could uphold the primacy of the First Amendment and tell states to be careful about restraining the speech found in entertainment content. Or the justices could create a new exception to the First Amendment for violence by deeming some entertainment fare to be the equivalent of shouting fire in a crowded theater.
One of the reasons why it’s so hard to guess the outcome here is that the issues don’t easily line up on the political-ideological meter. On one hand, conservative justices may be morally-minded and liberal ones may be culturally tolerant. This might suggest that a Bush-appointed justice like Samuel Alito would favor upholding California’s law whereas an Obama justice like Sonia Sotomayor would strike it down. On the other hand, some conservative justices like Roberts are constitutionalists and some liberal justices like Elena Kagan give more deference to legislative activism.
Tune in again on Thursday when the Supreme Court is scheduled to release its next batch of opinions.
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