June 27, 2011

Supreme Court Decides Brown v. Entertainment Merchants Assn.

On June 27, 2011, the Supreme Court decided Brown v. Entertainment Merchants Association, No. 08-1448, holding that video games qualify for First Amendment protection and striking down a California statute that restricted the sale or rental of violent video games to minors.

A 2005 California statute prohibited the sale or rental of "violent video games" to minors and required their packaging to be labeled "18." Members of the video-game and software industries challenged the statute before it could be enforced. The district court and the Ninth Circuit concluded that the Act violated the First Amendment and permanently enjoined its enforcement.

The United States Supreme Court agreed. It held that video games qualify for First Amendment protection because they communicate ideas and that "whatever the challenges of applying the Constitution to ever-advancing technology," basic First Amendment principles do not vary "when a new and different medium for communication appears." As it did last term in the animal-cruelty-video case (United States v. Stevens, 559 U.S. ___ (2010)), the Court recognized only a few limited exceptions to the First Amendment principle that government has no power to restrict expression because of its message, ideas, subject matter, or content. It reaffirmed that "new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." Although the Act had included language on standards and exceptions that appeared to mirror prior Court decisions in the area of obscenity, the Court rejected the Act's attempt to "shoehorn speech about violence into obscenity," because "violence is not part of the obscenity that the Constitution permits to be regulated."

The Court firmly rejected as "unprecedented and mistaken" the Act's attempt to "create a wholly new category of content-based regulation that is permissible only for speech directed at children." Government's undoubted legitimate power to protect children from harm "does not include a free-floating power to restrict the ideas to which children may be exposed." The Court pointed out that fairy tales and high-school reading lists (The Odyssey, Lord of the Flies, etc.) are full of violence and gore. It pointed out that long before video games, critics had tried to blame juvenile delinquency on dime novels, motion pictures, radio dramas, comic books, television, and music lyrics – but stated that whatever some members of society might think of their content, "disgust is not a valid basis for restricting expression."

Subjecting the Act to strict scrutiny, the Court held that California could not show that the Act was justified by any compelling government interest and was narrowly drawn to serve that interest. No evidence proved that violent video games cause minors to act aggressively in any manner or to any extent distinguishable from the effects produced by other media. As a means of protecting children from portrayals of violence, the Act was seriously underinclusive both because it regulated only video games and because it permitted a parental veto. As a means of assisting concerned parents it was seriously overinclusive because it abridged the rights of young people whose parents think violent video games are a harmless pastime. "[T]he overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny."

Justice Scalia delivered the opinion of the Court, in which Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined. Justice Alito, joined by Chief Justice Roberts, filed an opinion concurring in the judgment. Justices Thomas and Breyer filed dissenting opinions. 

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