Robert Downey Jr. as Supreme Court Justice Samuel Alito Jr.?
It doesn’t seem so crazy, if Tuesday’s exchanges from the nation’s highest bench hearing on California’s 2005 law banning sales of violent videogames to minors is anything to go by.
Gov. Arnold Schwarzenegger has made the law a legislative priority and, like in one of his action movies, he's fought hard for it’s implementation against all legal odds.
Tuesday, the law -- which has never actually taken effect because lower courts in 2005 and 2007 said it violated free speech rights -- was heard by the Supreme Court.
The law, which defines violence in videogames as “killing, maiming, dismembering, or sexually assaulting an image of a human being,” bans the sales of M-rated or Adults Only-rated games to minors, with a maximum $1,000 fine against any offending retailer.
The videogame industry’s worry is that if enforced, the ban could be a significant move to restrict the games' actual content.
That's the political back-story. But listening to arguments from Golden State lawyers and attorneys for the multi-billion-dollar videogame industry in "Schwarzenegger v. Entertainment Merchants Association" was like something right out of a Quentin Tarantino movie.
After a pointed set of concerns from Justice Antoin Scalia, you could just hear that poignant Downey delivery when Alito -- who seemed, along with Chief Justice John G. Roberts Jr. and Justice Stephen Breyer, to favor some version of the law -- leaned over and said to the lawyers: "Well, I think what Justice Scalia wants to know is what James Madison thought about videogames ... [d]id he enjoy them?"
In his best James Gandolfini, a deadly serious Scalia didn’t miss a beat:
"No, I want to know what James Madison thought about violence,” the Justice said. "Was there any indication that anybody thought, when the First Amendment was adopted, that there ... there was an exception to it for -- for speech regarding violence? Anybody?"
Only one Justice seemed to really know much about videogames as more than an abstract.
“You think 'Mortal Kombat' is prohibited by this statute?” Justice Elena Kagan, the Court’s youngest and newest member, asked Zackery P. Morazzini, a lawyer for California.
Before the lawyer could answer, the new Justice opined that “Moral Kombat” was “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”
Take that, Justice Luddites.
Morazzini, almost sheepishly, replied that, yes, that game would be a “candidate” under the California law.
Not that it was all fun and videogames. At one point Justice Alito tried to corner industry lawyer Paul Smith about what the state could do about regulating “the most violent, sadistic, graphic videogame that can be developed.”
But for all the concerns about content, Tuesday’s hearing was -- as it has been since the California legislature passed the bill -- about the Constitution. Specifially, about implications for First Amendment rights.
“It was always understood that the freedom of speech did not include obscenity,” noted Justice Scalia, who was the most obviously vehement opponent of the California law. “It has never been understood that freedom of speech did not include portrayals of violence.”
Almost in a hurry to get his objection out, he added, “You are asking us to create a ... a whole new prohibition which the American people never ... never ratified when they ratified the First Amendment.”
Added Justice Anthony Kennedy, "You are asking us to go into an entirely new area where there is no consensus, no judicial opinions," he said. "And this is ... and this indicates to me the statute might be vague."
Never a speedy process, a verdict is expected sometime before the Justices go on recess next summer.