Caseflicks

Supreme Court of the United States • 2011

Brown v. Entertainment Merchants Assn.

131 S. Ct. 2729 | 180 L. Ed. 2d 708 | 564 U.S. 786 | 2011 U.S. LEXIS 4802 | 79 U.S.L.W. 4658 | 22 Fla. L. Weekly Fed. S 1259

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that violent video games are protected speech, and a state cannot restrict minors’ access to them through a content-based law without satisfying strict scrutiny—a burden California’s law did not meet.

Background

California Assembly Bill 1179 prohibited the sale or rental of certain “violent video games” to minors, required covered games to bear an “18” label, and authorized civil penalties of up to $1,000. The statute targeted games in which players could kill, maim, dismember, or sexually assault a human image, when the game as a whole appealed to a deviant or morbid interest of minors, was patently offensive under community standards of suitability for minors, and lacked serious literary, artistic, political, or scientific value for minors.

Trade associations representing the video-game and software industries brought a preenforcement First Amendment challenge in federal district court. The District Court held the law unconstitutional and permanently enjoined enforcement. The Ninth Circuit affirmed, and the Supreme Court granted review.

Issues

Issue #1

Whether violent video games are expression protected by the First Amendment.

Holding

Yes. Video games are protected expression, including when they portray violence.

Reasoning

Video games communicate ideas and social messages through familiar expressive devices—characters, dialogue, plot, music, and narrative—and through medium-specific features such as the player’s interaction with a virtual world. Like books, plays, and films, they therefore fall within the First Amendment’s protection for speech.

The First Amendment’s basic protections do not change merely because a new communications technology has emerged. Government generally may not suppress expression based on its message, ideas, subject matter, or content, even if the expression is crude, violent, or of low artistic quality.

The Court rejected California’s effort to treat violent expression as analogous to obscenity. The historically recognized obscenity exception concerns sexually explicit material, not whatever material a legislature considers shocking or morally harmful. Earlier precedent likewise made clear that depictions of violence do not become unprotected obscenity simply because the government believes they may corrupt the young.

Issue #2

Whether California could create a new category of unprotected speech for violent material sold or rented to minors.

Holding

No. The State could not create a new First Amendment exception for violent video games available to minors.

Reasoning

Under United States v. Stevens, legislatures cannot create new categories of unprotected speech by balancing the speech’s perceived social costs against its value. Content-based restrictions require a historical basis in a long tradition of regulation, not simply a legislative judgment that particular expression is harmful.

Ginsberg v. New York did not authorize California’s law. Ginsberg allowed a state to apply an age-adjusted definition of an existing unprotected category—sexual obscenity—to minors. California instead sought to establish an entirely new category covering violent speech that adults could lawfully receive but minors could not purchase independently.

The Nation has no longstanding tradition of specially restricting children’s access to depictions of violence. Violent content has long appeared in children’s stories and canonical literature, from Grimm’s fairy tales to Homer and Dante. Past anxieties about dime novels, films, comic books, television, and music did not establish a constitutional tradition permitting censorship of violent entertainment for minors.

Interactivity did not remove video games from First Amendment protection. Players’ choices and involvement may differ in degree from reading or watching other works, but those features do not transform games from expressive works into a new, unprotected category of speech.

Issue #3

Whether California’s content-based restriction on the sale or rental of violent video games to minors survived strict scrutiny.

Holding

No. California failed to show that the law was necessary to serve a compelling interest and narrowly tailored to do so.

Reasoning

Because the Act singled out protected expression based on content, California had to prove a compelling interest and narrow tailoring. The State bore the burden of identifying an actual problem and showing that restricting speech was truly necessary to address it.

California’s psychological evidence did not establish a direct causal link between violent video games and harmful aggressive behavior by minors. The studies largely showed correlation rather than causation, had methodological limitations, and at most identified small short-term effects such as aggressive thoughts or feelings.

Even accepting that video games may have some effect, the research indicated effects comparable to those associated with violent television, cartoons, age-appropriate games, and even images of guns. California did not regulate those media. This severe underinclusiveness undermined the claim that restricting video games was necessary to advance the asserted interest rather than an effort to disfavor a particular form of speech.

The law also was not narrowly tailored as an aid to parental authority. The industry’s voluntary ESRB rating system gave parents substantial information and was effective at limiting minors’ access to mature-rated games. California did not demonstrate a compelling need to close the remaining gap through a speech restriction.

The statute was overinclusive as a parental-assistance measure because it restricted minors whose parents had no objection to their playing violent games. At the same time, it was underinclusive as a child-protection measure because a parent, aunt, or uncle could authorize the purchase. The law therefore did not coherently and narrowly serve either of its asserted goals.

Concurrences

Justice Alito

Reasoning

Justice Alito agreed that the judgment against California should be affirmed, but he would have decided the case on due-process vagueness grounds rather than resolving the broader First Amendment question. In his view, the Act did not give sellers fair notice of which games counted as prohibited “violent video games,” a defect that creates particular concern when a law regulates expression.

The statute borrowed parts of obscenity doctrine but lacked obscenity law’s limiting focus on specifically defined hard-core sexual material. Its threshold terms—especially “maiming”—and its reliance on whether a game appealed to a “deviant or morbid interest” of minors and offended community standards did not supply a sufficiently precise boundary for regulated parties.

Justice Alito did not believe Stevens controlled. Unlike the animal-cruelty statute in Stevens, California’s law regulated only sales or rentals to minors, preserved adults’ access, and allowed parents and certain relatives to obtain games for minors. He also read Stevens as leaving room for more narrowly drawn regulations.

He urged caution before equating video games with older media. Modern and developing games can be unusually immersive, realistic, interactive, and physically involving; players may act through personalized avatars and receive rewards for virtual violence. Those features could make the effects of playing violent games materially different from reading about or passively watching violence, so he would leave the constitutional validity of a precisely drafted law for a future case.

Dissents

Justice Thomas

Reasoning

Justice Thomas concluded that the First Amendment, as originally understood, did not protect a right to speak to minors—or a reciprocal right of minors to receive speech—without going through their parents or guardians. He would therefore uphold the law against this facial First Amendment challenge and remand for further proceedings.

In his historical account, the founding generation understood parents to possess extensive authority and responsibility over their children’s upbringing, education, reading, and moral development. That understanding, he maintained, made it implausible that the original public meaning of “the freedom of speech” included an unrestricted right for third parties to provide speech directly to children.

The California law supported rather than displaced parental authority. It did not prohibit adults from playing violent games, prevent parents or specified relatives from buying games for minors, or forbid minors from playing games acquired with family approval. It only restricted direct sales and rentals to minors that bypassed those adults.

Because the statute had many ordinary applications in which it merely required parental involvement, Justice Thomas reasoned that it was not facially unconstitutional under any applicable facial-challenge standard. He left open whether unusual applications, such as one involving an emancipated minor, might support an as-applied challenge.

Justice Breyer

Reasoning

Justice Breyer would have upheld the Act against a facial challenge. He viewed the relevant constitutional concern not as the creation of a new category of unprotected violent speech, but as the State’s established authority to protect children and assist parents in guiding minors’ access to potentially harmful material.

He rejected the vagueness objection. In his view, the statute closely tracked language sustained in Ginsberg and Miller, and terms such as killing, maiming, and dismemberment gave adequate notice. The statute’s exemption for games with serious literary, artistic, political, or scientific value, together with the video-game industry’s own ratings process, further helped distinguish covered games from protected games at the boundary.

Justice Breyer would apply rigorous First Amendment review, but not mechanically. The burden on speech was modest because the law did not bar anyone from playing games, bar adults from buying them, or stop minors from receiving them with parental assistance. It principally prevented unaccompanied minors from purchasing extremely violent games that the industry itself rated as inappropriate for those under 17.

California had compelling interests in protecting minors’ psychological well-being and reinforcing parental authority. Justice Breyer relied on longitudinal, experimental, and meta-analytic studies, as well as public-health organizations’ assessments, suggesting that violent interactive games may increase aggressive behavior or thoughts and may pose distinctive risks because they require practice, participation, identification with a character, and rewards for violent conduct.

The industry’s voluntary rating system was not an equally effective alternative. Federal Trade Commission reports showed substantial noncompliance, including continuing sales of mature-rated games to minors. Technological parental controls could also be bypassed. Given the evidence and the legislature’s institutional competence to assess disputed social science, Justice Breyer would defer to California’s judgment that the limited sales restriction was justified.