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The US Supreme Court heard oral arguments on Tuesday in a case that pits Arnold Schwarzenegger and California lawmakers against what they call violent video games.

In essence, the Supremes will decide whether to remove First Amendment protection from games that California lawmakers deem inappropriate for children.

In 2005, California Governor Arnold Schwarzenegger signed a law prohibiting anyone under 18 from buying or renting a game that involves "killing, maiming, dismembering, or sexually assaulting an image of a human being." But the law never took effect, after a federal judge shot it down and an appeals court upheld his decision.

In April, the Supreme Court agreed to hear the case, and it went before the court on Tuesday. A transcript of the oral arguments (PDF) indicates that although the Supremes pushed back on both sides of the argument, they were a bit harder on California deputy attorney general Zackery Morazzini.

"What’s a deviant, violent video game? As opposed to what? A normal violent video game?" Justice Antonin Scalia asked Morazzini.

"Yes, your honor," Morazzini replied. "Deviant would be departing from established norms."

"There are established norms of violence?" Scalia said. "Some the Grimm’s fairy tales are quite grim, to tell you the truth."

First Amendment lawyer Damon Dunn, a partner at the Chicago law firm Funkhouser Vegosen Liebman & Dunn Ltd., expects the court to strike down the California law. "First Amendment law has never equated violence with obscenity because themes involving violence often possess socially redeeming value," he says.

"Fictional video game violence only approximates the bloodshed described in history books and news media. Consequently, it seems impossible to draw lines applicable to all minors in the State of California that can objectively predict which games will lack any expressive values protected by the First Amendment.

“There also seems to be less justification for political intervention in this context because parents, who buy the game systems if not the games themselves, are better suited to exert control and decide which speech is tolerated in the privacy of their own homes."

Speaking with The Reg, he cites as precedent the court's April decision to toss out the criminal conviction of a man, Robert Stevens, who ran a website that included video of violent pit bulls. "When you look at the Stevens case, I think that has predetermined [the California case]," he says. "Minors are protected under the First Amendment. It doesn't really carve out an exception for an particular age group." ®

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