Paul M. Smith, a lawyer for the video game industry, faced a barrage of hostile questions from those three justices, who elicited from him, after some back and forth, the acknowledgment that there was nothing states could do to regulate the sale of, in Justice Alito’s words, “the most violent, sadistic, graphic video game that can be developed.”

Appellant and his wife operate "Sam's Stationery and Luncheonette" in Bellmore, Long Island. They have a lunch counter, and, among other things, also sell magazines including some so-called "girlie" magazines. Appellant was prosecuted under two informations, each in two counts, which charged that he personally sold a 16-year-old boy two "girlie" magazines on each of two dates in October 1965, in violation of § 484-h of the New York Penal Law

The well-being of its children is of course a subject within the State's constitutional power to regulate, and, in our view, two interests justify the limitations in § 484-h upon the availability of sex material to minors under 17, at least if it was rational for the legislature to find that the minors' exposure to such material might be harmful. First of all, constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.... The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”

“What’s a deviant violent video game?” asked Justice Antonin Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?”

Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Justice Alito and Chief Justice John G. Roberts Jr. were, along with Justice Breyer, the members of the court who seemed most inclined to try to find a way to uphold the law.

Justice Alito said the experience of playing a video game was different in kind from reading a book or seeing a movie. He described a game in which players throw their enemies into a meat grinder.

“Reading that is one thing,” he said. “Seeing it as graphically portrayed” is another thing.

“And doing it is still a third thing,” he added.

Chief Justice Roberts said the law might be needed because “any 13-year-old can bypass parental controls” on game consoles “in about five minutes.”

Morazzini [CA's Attorney General] said California's interest was in helping parents keep some images from their children. He cited studies that have shown videos to be different from other media in that the player is actually involved in directing the violence depicted on the screen.