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There’s an interesting footnote (the second) in Justice Alito’s concurrence to Justice Scalia’s opinion in BROWN v. ENTERTAINMENT MERCHANTS ASSN. (No. 08-1448) 556 F. 3d 950, affirmed. (2011) overturning California’s ban on selling or renting violent video games to minors:  

…Under the California law, a game that meets the threshold requirement set out in text also qualifies as “violent” if it “[e]nables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.” §1746(d)(1)(B). In the Court of Appeals, California conceded that this alternative definition is unconstitutional, 556 F. 3d 950, 954, n. 5 (CA9 2009), and therefore only the requirements set out in text are now before us….

Why should our video games be any different than our society?

Poll finds lack of support for ‘torture’ investigations

updated 3:16 p.m. EDT, Wed May 6, 2009

“…Roughly one in five Americans believe those techniques were torture but nonetheless approve of the decision to use those procedures against suspected terrorists,” CNN Polling Director Keating Holland said. “That goes a long way toward explaining why a majority don’t want to see former Bush officials investigated…”

Washington Post-ABC News Poll

This Washington Post-ABC News poll was conducted by telephone April 21-24, 2009, among a random national sample of 1,072 adults using both conventional and cellular phones…The results from the full survey have a margin of sampling error of plus or minus three percentage points…

…30. Obama has said that under his administration the United States will not use torture as part of the U.S. campaign against terrorism, no matter what the circumstance. Do you support this position not to use torture, or do you think there are cases in which the United States should consider torture against terrorism suspects?


Support not using torture – 49%

There are cases to consider torture – 48%

No opinion – 2%


Support not using torture – 58%

There are cases to consider torture – 40%

No opinion – 2%

Do you think the undecideds work in the video game industry?

Previously: A Small Clique Of Legal Extremists… (February 24, 2008)