Back in 2011, the Supreme Court handed down a momentous decision enshrining video games as speech with full First Amendment protections, invalidating a number of attempts by states to ban sales and rentals of violent games to unaccompanied minors. But if one Justice had voted with her personal feelings rather than with her understanding of the law, things might have gone very differently.
Speaking at a forum hosted by Princeton University back in November, Supreme Court Justice Elena Kagan called Brown v. Entertainment Merchants Association the toughest case she’d ever been part of. Kagan responded to an audience question by saying that she is “not usually an agonizer,” but in deciding this case she was “all over the map… Every day I woke up and I thought I would do a different thing or I was in the wrong place.”
The problem, it seems, is that Kagan’s personal feelings on the law conflicted with the direction the First Amendment and established legal precedent were pointing her decision. Speaking about the decision, Kagan halted numerous times to reassemble her thoughts, saying, “I have to say, everything in my—it should be that you should not be able—if a parent doesn’t want her kids to buy violent video games, that should be the parents’—it should be that this law was OK, I guess is what I’m saying.”
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