In Brief

On June 27, 2011, the Supreme Court of the United States decided Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011). At issue was California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§ 1746–1746.5 (“Act”), which prohibited the sale or rental of violent video games to minors. The Court held the Act did not comport with the First Amendment, affirming the Ninth Circuit.

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The Court began by noting that the First Amendment primarily protects political speech, but that it is difficult to distinguish politics from entertainment. Next, the Court stated that the principle of freedom of speech does not vary for new communication mediums. As such, because video games communicate ideas, they are protected by the First Amendment.

The Court next highlighted examples of speech that are not protected by the First Amendment: obscenity, incitement, and fighting words. A legislature, the Court explained, cannot add new categories to the list of unprotected speech because such an addition would be against the judgment of the American people as embodied by the First Amendment.

California argued that violent video games are obscene, and hence unprotected, but the Court, reviewing the history of obscenity, determined that the obscenity exception only applies to depictions of sexual conduct.

The Court next recounted a history of vilification of new communication mediums, and drew to video games a direct line from dime novels through motion pictures, radio dramas, comic books, television, and music lyrics. California argued that the interactive nature of video games distinguished them from previous communication mediums, but the Court dismissed the argument by stating that literature has been interactive since at least 1969 when the first choose-your-own-adventure book was published.

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The Court rejected the notion that the content of the ideas communicated by video games, no matter how horrible or disgusting, was a valid basis for restricting their expression.

Consequent to finding video games subject to the protections of the First Amendment, the Court applied the strict scrutiny test to the Act. The strict scrutiny test required California to demonstrate that the Act was justified by a compelling government interest and was narrowly drawn to serve that interest. However, California was unable to show a direct causal link between violent video games and harm to minors. California was also unable to show that children’s exposure to violence in video games was distinguishable from exposure to violence on television, which was not similarly restrained by the Act. As such, the Court found the Act underinclusive when judged against its asserted justification. The Court reasoned that an underinclusive law cannot be narrowly tailored, hence cannot pass strict scrutiny, and hence cannot comport with the First Amendment.

The Court outlined the ESRB rating system, and the Court quoted a FTC report finding that the video game industry outpaces the movie and music industries in restricting target marketing of mature-related products to children; clearly and prominently disclosing rating information; and restricting children’s access to mature-related products at retail. As such, the Court reasoned the Act was not justified by a compelling interest, did not pass strict scrutiny, and hence did not comport with the First Amendment.

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The Court praised the good intentions behind the Act—protection of minors—but noted that constitutional limits on government apply to even the most well-intentioned act.

One Justice concurred separately, the concurrence joined by the Chief Justice. One Justice dissented.