The other Justices and the audience laughed in astonishment. This kind of ribbing, Alito basically teasing Scalia for his strict interpretation of the Constitution, is unheard of during oral arguments in the Supreme Court. "Alito was definitely poking fun of Scalia in a good-natured way," Mercurio said of the jibe. Scalia has been known to bring up James Madison in similar fashion during other oral arguments, but for another Justice to point out the absurdity of whether our Founding Fathers would contemplate the existence of videogames was "eye-opening."
"Generally, in oral arguments, and anywhere publicly, one does not experience, on any level, the inner workings of the Court," Mercurio said. You don't see evidence of interpersonal relationships or a sense of humor from the Justices and the fact that Scalia's strict views were acknowledged as the subject of an inside joke was amazing to her.
Justice Sotomayor's comment about rap lyrics was even more telling. "Could you get rid of rap music?" she asked the attorney from California. "Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them?"
To Mercurio, it was great for Sotomayor to address other facets of our culture. "We had a Justice who was openly acknowledging that they had an understanding of the greater society. Rap lyrics exist. That there are societal things that go on outside of contract law," Mercurio said. "The fact that most of the Justices were keenly listening to hear what the response was showed us that, Oh my God, not just Sotomayor, but the others also understood that. It was refreshing."
After Morazzini verbally waffled before the onslaught of the Justices' questions, it was time for Paul Smith, the attorney representing the EMA, to take the floor in support of the rights of videogames. In contrast to Morazzini, Smith was cool under pressure. When he was pressed by the Justices, Smith used simple declarative statements to emphatically state what he believed was true. "My position is that there is not a violence exception to the First Amendment for minors and there should not be," he said in response to a question from Chief Justice Roberts.
Regarding the studies of the effect of violent videogames on children, Smith was adamant. "Well, I guess I can imagine a world in which expression could transform 75 percent of the people who experience it into murderers. That's clearly not the way the human mind works. Here the reality is quite the opposite."
When Justice Alito tried to say that videogames were somehow different than non-participatory forms of art, Smith quickly attacked. "We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals."