It was a cold and clear day in our nation’s capital. While the rest of the country was going about its business, some marching off to vote for their candidate in the midterm elections, others just heading to work for the day, Jennifer Mercurio was on her way to witness history. Vice President and General Counsel for the Entertainment Consumers Association, Mercurio was happy to see the steps of the Supreme Court of the United States were full of supporters for her cause. For that day, November 2nd 2010, was the culmination of a longtime struggle for Mercurio and the ECA. Not only did she work on the amicus brief for the Justices to read before the case but she herself is a longtime gamer and has fought for videogame rights most of her career. That day would be the day that the highest legal authority of the land would once and for all hear the arguments that would help the nine Justices decide whether videogames deserve the same First Amendment rights as books, movies and all other pieces of art.

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Like your history teacher might have explained to you, the American legal system can act as a check on legislative power. Lawmakers can write a law that might violate the principles of the Federal Constitution. Someone or some group, in this case the Entertainment Merchants Association, can sue on those grounds and a local court will hold hearings to either strike down the law as unconstitutional or uphold it. Either group can then appeal that decision to the Circuit level, where new hearings are held and a new decision made. Finally, if a party is still unhappy with the decision, they can apply for the case to be reviewed by the Supreme Court. The Supreme Court is made up of nine Justices who are appointed for life terms by the President of the United States. The Supreme Court listens to oral arguments from both sides, and then votes on which side they support. Anywhere between 5 and 10 thousand cases are submitted to the Supreme Court each year, but the Justices only choose to hear the hundred or so cases that are the most important for shaping the legal landscape of the United States.

There were many videogame supporters that were nervous that the Supreme Court even agreed to hear the case for California’s law. The bill proposed that games that were deemed to contain “deviant violence” would be labeled as such (in addition to the voluntary ratings the ESRB already provides) and that it would be a criminal offense to sell such games to minors under the age of 18. The law proposed by Rep. Leland Yee of California had been struck down as violating the First Amendment rights of videogames by both a local court and the 9th Circuit Court of Appeals before the Supreme Court decided to hear it. If the law was unconstitutional, then why even bother listening to arguments for it? Would the Supreme Court overturn the lesser court’s decision?

“For most of the people who were there, for their entire professional careers in videogames … this question has always been hanging in the air and here we are. We’re at the plate, shall we say,” Mercurio told me. “This is the big-time. This is it.”

When she arrived at the Supreme Court building in Washington, DC., Mercurio was amazed at the sheer number of people who had gathered respectfully on the steps, holding signs that read “Videogames Are Art” and wearing red ECA t-shirts. “If there’s a presence on the steps, it helps basically set the stage, set the feel in the air. I do know that it made a positive impact, just psychologically,” Mercurio said.

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There are several ways to get in to witness the proceedings: You can obtain a rare “Golden Ticket” from the Supreme Court Marshal if you are connected to the case, attorneys of the Supreme Court Bar wait in line for a small number of seats, and the rest of the small number of seats are given to the public on a first-come first-served basis. “I drove up a little before 9 am and there was an enormous line snaking down the steps of the Supreme Court all the way down the block,” she recalled. She has been to many Supreme Court oral arguments, but Mercurio swears that she has never seen that many people clamoring to be let in just to witness them.

When she got inside the building, Mercurio was glad that she had a ticket, for even the attorneys’ line was extremely long. “So many people wanted to get in, whether they were affiliated or unaffiliated in the case, to see this particular oral argument,” Mercurio said. “It’s really history in the making here regarding the First Amendment and a whole new medium of speech.” The issue at stake is important for so many people and the palpable feel of excitement and anticipation followed Mercurio into the majestic Supreme Court room itself.

The State of California, represented by Zackery P. Morazzini, was the first to speak. He outlined the case for the law and then answered a series of questions from the Justices. “This morning,” he said, “California asks this Court to adopt a rule of law that permits States to restrict minors’ ability to purchase deviant, violent videogames that the legislature has determined can be harmful to the development – “

Justice Scalia interrupted him with a pointed question, “What’s a deviant, violent videogame? As opposed to what? A normal violent videogame?” From there, it seemed like the Justices were on the attack, probing Morazzini’s arguments for faulty logic.

Supreme Court Justices generally range in age from middle-aged to extremely old and they are often seen as out-of-touch or stuffy. The kinds of cases that they typically argue about are honestly boring, according to Mercurio, for anyone who doesn’t care a whit about contract law. But if you think that the discussion on the First Amendment rights of videogames held in that austere chamber would be dry and filled with legal mumbo-jumbo, then you’d be sorely mistaken.

“Talking about videogames is kind of fun,” Mercurio said with a laugh. “The Justices found it interesting and were tremendously engaged. It was amazing to behold.”

Justice Scalia, for example, is known as a Constitutional Originalist, meaning that he interprets the Constitution and its Amendments as our country’s founders might have. Of course, the primary author of the Constitution, James Madison, would have had no basis on how to judge videogames, which fellow Justice Alito pointed out in a quip: “I think what Justice Scalia wants to know is what James Madison thought about videogames. Did he enjoy them?”

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.”

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“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.”

It was that kind of gumption that impressed the audience, the Justices and Jennifer Mercurio. “He had the perfect mix of aggression when he needed to as well as acting reflective,” she said in praise of Paul Smith. “He has a brilliant legal mind and I was so happy that he was up there representing the industry. I don’t think anyone could have done a better job.” She believes that his arguments will have a profound effect on the outcome of this decision. “In any kind of case, if one has a mediocre attorney representing one’s side, the justices may come to the conclusion on their own, but a good litigator walks hand-in-hand with the Justices to move them along the path of the argument.”

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It must be pointed out that the attorney from California, Morazzini, might have made a serious mistake when he said that he had little knowledge of videogames and it could have cost California its case. “Morazzini may have offended the Court in his admitting never to have played videogames, which made it seem like he didn’t know what he was talking about regarding the media overall,” Mercurio noted. “I find it astonishing that anyone would have the chutzpah to stand in front of the Supreme Court of the United States and call something obscene and bestial and not have experienced the joy of Tetris, or Mario Kart, or The Sims. I was dumbfounded. I found it very sad to hear someone get up and make all kinds of aspersions against an entire medium based on clips of, it’s my understanding, one game, Postal 2. It’s honestly inconceivable to me but that’s what he said.”

Like many events that you prepare months or even years for, it was over before Mercurio knew it. The oral arguments before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association took place between 10:04 am and 11:04 am on that brisk morning in our nation’s capital, but its effects will last forever. Mercurio was careful not to make any outlandish predictions, but it’s clear after speaking to her and getting a feel for what it was like in the courtroom that she and the ECA is optimistic as to the outcome. “Everybody felt that we’ve done everything we’ve can. We’ve put our best foot forward. Paul Smith was phenomenal. It was amazing to witness that level of engagement from the Justices, and now we’ve got to wait. There was no feeling of regret,” she said.

Waiting will be difficult. The nine Justices will deliberate on what they heard during the oral arguments and each will cast a vote for which side they support. A Justice from the winning side will write a decision, and the results will be announced as soon as that process is complete. There is a lot at stake. “Should the Court decide for California, videogames will become less accessible and more expensive, and the law will send a chilling wind through the entire industry and could affect other entertainment mediums like movies and music,” Mercurio said. “A win for the EMA/ESA would encourage the industry to continue making groundbreaking new games for us all to enjoy.” Let’s hope that, when the decision of the Supreme Court is delivered sometime in the first half of 2011, the arguments heard on November 2nd had a profound effect and the rights of videogames are held to be just as important to our culture as all other pieces of art.

Greg Tito would like to thank James Madison for making this article possible.

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