I have two stand-out Election Day video game memories. One involves Fable II. The other involves a highlight of my career: going to the Supreme Court on November 2, 2010, to see a gaming industry lawyer argue—successfully—that games deserve the protection of the First Amendment.

It’s an important episode in video game history, one that any gamer—at the very least any American gamer—should know about. Spurred by Democratic state senator Leland Yee and Republican governor Arnold Schwarzenegger, the State of California had tried to criminalize the sale of extremely violent video games to minors. Attorneys for the state argued that violent games, like tobacco and unlike violent movies, were inherently harmful to kids. Video games didn’t deserve, the state claimed, the free speech protections granted to books, music and other art.


Here’s an excerpt from the oral arguments that day in November, though I strongly urge you to read the full report (a report I filed by phone, believe it or not, to then-editor-in-chief Brian Crecente):

California deputy attorney general Zackery Morazzini started today’s one hour session at the U.S. Supreme Court saying that the “deviant level of violence that is presented in a certain of category of video games” requires legal restrictions to protect minors.

Morazzini’s opening statement was almost immediately interrupted by Justice Antonin Scalia who pointed out that Grimm’s fairy tales are very violent as well.

“Are you going to ban them too?” Scalia asked of the attorney general.

Scalia, one of the court’s most conservative justices and most vocal in the questioning of the state today, repeatedly and often with humor questioned Morazzini about the California law and its effects on the First Amendment.

“You are asking us to create a whole new prohibition, which the American people never ratified when they ratified the First Amendment... what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children?,” asked Scalia in the hearing.

“I think what Justice Scalia wants to know is what James Madison thought about video games,” Justice Samuel Alito joked.

No one attending ventured a guess.

California lost, we’d find out in June of the next year. They lost badly, 7-2. Most of the Justices, from the liberal Ruth Bader Ginsburg to the conservative Antonin Scalia, just didn’t buy California’s argument. With that, video games were affirmed to merit the same First Amendment protection as movies, books and any other form of entertainment and speech that are only bound by voluntary regulations and ratings established by the industries behind them.


That case, Brown vs. the Entertainment Merchants Association, affirmed something else as well. It affirmed my sense that gaming is indeed a strong artistic medium that, flaws and all, can withstand severe criticism. It’s part of why I’ve always had a tough time relating to people who are worried about what a talking head on TV is yelling about regarding games or what any critic is saying. People used to get upset that Roger Ebert didn’t think games were actually art. These days, you’ll hear from some who believe that critiques about feminism, class, sex, gender, politics or race might hurt gaming. Of course, others find that kind of critique helpful and essential to the growth of the medium even if it’s flawed at times. (That’s where we stand at Kotaku, as you’ve likely surmised.)

There’s always been a lot of this with gaming, the idea that loving games means loving something that feels like it’s under attack... PC gaming under threat from console gaming, “real” console gaming under threat from Wii gaming, hardcore gaming under threat from mobile gaming. Some of that’s embarrassing to think about now, of course. How unwelcoming we could be to new gaming ideas at times! Why have we cared so much about what other people are playing when we ourselves are playing such great stuff?


It sure was easy, for decades, to feel the haunt of outsider criticism: Fox News against gaming, Jack Thompson against gaming, Hillary Clinton against gaming... etc. Some of those attacks were real. Some, I fear, we blew out of proportion, maybe because we weren’t confident in the greatness of gaming, maybe because we were used to being treated as outsiders. Maybe we in the media played up the anti-gaming bogeyman too much, paid too much attention to the idea that gaming turned people into killers. Sure, I felt some of the anxiety about the attacks on gaming. Some of us knew in our gut that our favorite form of entertainment had a lot of developing to do but we also knew damn well that playing a violent game never made us pick up a weapon in anger.

The threat against gaming was certainly formidable that November four years ago. But it lost. The Justices’ decision in June of 2011 confirmed as much: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Scalia wrote late that month. “But these cultural and intellectual differences are not constitutional.” Not the most spirited defense of games? No big deal. Games won. It’s a win worth celebrating and a memory I’m happy to recall every Election Day.

One of my favorite parts of that November day were the people I saw outside the Court, ready to, for the most part, defend games. Here are some photos I shot that day:


I’ll forever love that Pokémon sign.

To contact the author of this post, write to stephentotilo@kotaku.com or find him on Twitter @stephentotilo.