Brown v. Entertainment Merchants Association
564 U.S. 786 (2011)
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Rule of Law:
Depictions of violence are not a historically unprotected category of speech, and thus a state law restricting the sale of violent video games to minors is a content-based restriction on speech that must satisfy, and in this case fails, strict scrutiny.
Facts:
- California enacted Assembly Bill 1179, which prohibited the sale or rental of 'violent video games' to individuals under the age of 18.
- The law required packaging of such games to be labeled '18'.
- The law defined a 'violent video game' as one where the player's options include 'killing, maiming, dismembering, or sexually assaulting an image of a human being' in a way that appeals to a 'deviant or morbid interest of minors,' is 'patently offensive' to community standards for minors, and lacks serious value for minors.
- Violations of the law were punishable by a civil fine of up to $1,000.
- The law provided an exception allowing a minor's parent, grandparent, aunt, uncle, or legal guardian to sell or rent a violent video game to that minor.
- Prior to the law's enactment, the video game industry had established the Entertainment Software Rating Board (ESRB), a voluntary rating system to inform consumers about game content.
Procedural Posture:
- Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the U.S. District Court for the Northern District of California (a federal trial court).
- The District Court concluded the Act violated the First Amendment and permanently enjoined its enforcement.
- The State of California (petitioner) appealed to the U.S. Court of Appeals for the Ninth Circuit (an intermediate federal appellate court).
- The Ninth Circuit affirmed the District Court's judgment.
- The U.S. Supreme Court granted certiorari to review the case.
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Issue:
Does a California law imposing restrictions on the sale or rental of 'violent video games' to minors violate the First Amendment's guarantee of freedom of speech?
Opinions:
Majority - Justice Scalia
Yes, the California law violates the First Amendment. Video games, like books and films, are a form of expression protected by the First Amendment. The law is a content-based restriction on speech, which is presumptively invalid and must survive strict scrutiny. Unlike obscenity, depictions of violence are not a historically unprotected category of speech. The Court rejected California's attempt to create a new category of unprotected speech for violence, following the precedent set in United States v. Stevens. The law fails strict scrutiny because California did not demonstrate a compelling government interest; the psychological studies it presented showed only a correlation, not causation, between violent games and harm to minors, and the effects were indistinguishable from those of other media like cartoons. Furthermore, the law was not narrowly tailored, as it was wildly underinclusive by targeting only video games while ignoring violent content in books and movies, and overinclusive by restricting the rights of minors whose parents believe the games are harmless.
Concurring - Justice Alito
Yes, the law is unconstitutional, but the Court should have decided the case on narrower grounds. The California law is unconstitutionally vague because its definition of a 'violent video game' fails to provide fair notice of what is prohibited. Terms like 'deviant or morbid interest' are not well-defined in the context of violence, unlike in the context of obscenity where there is a history of accepted community norms. The statute's vagueness is compounded by its failure to distinguish between different age groups of minors. While this particular law fails for vagueness, the Court's majority opinion is too quick to dismiss the possibility that new, interactive, and increasingly realistic video games may pose unique problems different from older forms of media.
Dissenting - Justice Thomas
No, the California law does not violate the First Amendment. Based on an originalist interpretation, 'the freedom of speech' as understood by the founding generation did not include a right to speak to minors without parental consent or guidance. Historical evidence shows that the Founders believed parents had absolute authority to direct the upbringing and education of their children. A law that supports this traditional parental authority by prohibiting the direct sale of certain materials to minors does not 'abridge' the freedom of speech. The statute does not prohibit minors from accessing the games, but rather channels that access through their parents, which is consistent with the original understanding of the Constitution.
Dissenting - Justice Breyer
No, the California law is constitutional. The statute withstands strict scrutiny. The State has a compelling interest in protecting the well-being of its youth and in supporting parental authority. There is considerable scientific evidence, which the legislature was entitled to credit, suggesting a causal link between playing violent video games and psychological harm to children, particularly given the interactive nature of the medium. The law is narrowly tailored because the restriction is modest—it does not ban possession and allows parental purchase—and less restrictive alternatives like the industry's voluntary rating system have proven to be imperfect. The Court creates an anomaly by allowing restrictions on sexually explicit material for minors (Ginsberg) but not on interactive and graphically violent material.
Analysis:
This decision firmly establishes that video games are a protected form of speech under the First Amendment, equivalent to literature and film. It significantly curtails the ability of states to regulate violent content, confirming that, unlike obscenity, depictions of violence do not constitute a category of unprotected speech. The ruling reinforces the high bar of strict scrutiny for content-based regulations, even when aimed at protecting minors, and makes it extremely difficult for legislatures to restrict minors' access to violent media outside of the established obscenity framework.
