Key Takeaways
- First Amendment Protection for Video Games: The Supreme Court’s decision in Brown v. Entertainment Merchants Association established that video games, including those depicting violence, are protected forms of free speech under the First Amendment, on par with books, films, and other expressive media.
- Strict Scrutiny for Content-Based Laws: The Court struck down California’s law restricting the sale of violent video games to minors, finding it failed the strict scrutiny standard. The state did not demonstrate a compelling interest nor did it narrowly tailor the law to achieve its goals.
- Parental Responsibility Over Government Regulation: The ruling underscored the importance of parental discretion in monitoring children’s media consumption and rejected the idea that the government should decide which ideas children may access.
Introduction
In 2011, the United States Supreme Court handed down a landmark decision in Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), fundamentally shaping the legal landscape for video game regulation and First Amendment rights. The case arose in response to a 2005 California law that prohibited the sale or rental of violent video games to minors, imposing civil penalties for violations. The law defined "violent video games" in a manner similar to the definition of obscenity for sexual material, but it targeted depictions of violence rather than sexually explicit content.
The law was challenged by the Entertainment Merchants Association and the Entertainment Software Association, two industry groups representing video game publishers and retailers. They argued that the law violated the First Amendment by imposing unconstitutional restrictions on protected speech. The case, docket number 08-1448, was ultimately decided by a 7-2 majority, with Justice Antonin Scalia delivering the opinion of the Court. The decision struck down the California statute, holding that video games, like other forms of media, are entitled to robust First Amendment protection.
This guide provides a comprehensive overview of the case, its background, the Supreme Court’s reasoning, dissenting opinions, and its lasting impact on the regulation of media content and the rights of minors.
Background of the Case
The California Law
In 2005, California enacted Assembly Bill 1179, codified at Cal. Civ. Code §§ 1746-1746.5, which sought to restrict the sale or rental of "violent video games" to individuals under the age of 18. The law required games deemed "violent" to be labeled as such and imposed fines of up to $1,000 for violations. The law defined violent video games as those enabling the player to "kill, maim, dismember, or sexually assault an image of a human being" in a way that is "patently offensive," appeals to a "deviant or morbid interest" of minors, and lacks serious literary, artistic, political, or scientific value for minors.
The law’s structure closely mirrored the Supreme Court’s definition of obscenity in Miller v. California, 413 U.S. 15 (1973), but crucially, it targeted violence rather than sexual content.
Parties Involved
- Plaintiffs: The Entertainment Merchants Association (EMA) and the Entertainment Software Association (ESA), representing the interests of video game publishers, distributors, and retailers.
- Defendants: Edmund G. Brown, Jr., then Governor of California, and Kamala Harris, then Attorney General of California, defending the state’s authority to regulate the sale of violent media to minors.
Legal Journey
After the law’s passage, the EMA and ESA filed suit in federal court, seeking to enjoin enforcement on First Amendment grounds. The district court granted summary judgment in favor of the plaintiffs, holding the law unconstitutional. The Ninth Circuit Court of Appeals affirmed, and the State of California petitioned for certiorari to the Supreme Court, which was granted.
Legal Issues Presented
The central legal question was:
Does the First Amendment bar a state from restricting the sale of violent video games to minors?
To answer this, the Court needed to address several sub-issues:
- Are video games a form of expression protected by the First Amendment?
- Does the government have a compelling interest in restricting minors’ access to violent video games?
- If so, is the law narrowly tailored to achieve that interest without unnecessarily infringing on free speech rights?
The Supreme Court’s Decision
Majority Opinion
Justice Antonin Scalia authored the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justices Alito and Roberts concurred in the judgment but wrote separately. Justices Thomas and Breyer dissented.
Video Games as Protected Speech
The Court unequivocally held that video games are protected speech under the First Amendment. Justice Scalia wrote:
"Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices... and through features distinctive to the medium."
The Court rejected the notion that the interactive nature of video games diminished their expressive value or their entitlement to constitutional protection.
Content-Based Restrictions and Strict Scrutiny
The law was classified as a content-based restriction on speech, which is presumptively invalid and subject to the highest level of judicial review: strict scrutiny. Under this standard, the government must show:
- A compelling interest justifying the law, and
- That the law is narrowly tailored to achieve that interest.
Compelling Interest and Narrow Tailoring
California argued that it had a compelling interest in protecting minors from the harmful effects of exposure to violent video games. The Court, however, found the evidence insufficient:
- The state cited studies suggesting a correlation between violent video games and aggressive behavior, but the Court found these studies unpersuasive and inconclusive.
- The law’s effectiveness was undermined by its exceptions: it did not prohibit parents, grandparents, aunts, uncles, or legal guardians from providing such games to minors.
Justice Scalia noted that the government “lacks the power to restrict expression simply because of its content,” and that there is no tradition in American law of restricting children’s access to depictions of violence.
Comparison to Obscenity Laws
California attempted to analogize its law to the regulation of obscene materials for minors, as upheld in Ginsberg v. New York, 390 U.S. 629 (1968). The Court rejected this analogy, emphasizing that obscenity is a historically recognized exception to the First Amendment, but violence is not.
Parental Responsibility
The majority opinion stressed that it is the role of parents, not the government, to monitor and regulate their children’s media consumption. The Court pointed to the existence of the Entertainment Software Rating Board (ESRB) rating system as a voluntary industry mechanism for informing parents about game content.
Holding
The Supreme Court struck down the California law as unconstitutional, reaffirming the broad protection afforded to expressive content under the First Amendment.
Read the full opinion at the Legal Information Institute or Oyez.
Dissenting Opinions
Justice Thomas’s Dissent
Justice Clarence Thomas dissented, arguing that the Founders did not understand the freedom of speech to include a right to communicate with children without parental consent. He cited historical evidence suggesting that parental authority over children’s access to information was deeply rooted in American tradition.
Justice Breyer’s Dissent
Justice Stephen Breyer also dissented, emphasizing the state’s interest in protecting children from harm. He argued that the law was similar to those restricting minors’ access to sexually explicit material, and that the evidence of harm, while not conclusive, was sufficient to justify regulatory action by the state.
Breyer also noted the practical difficulties parents face in monitoring their children’s media consumption and suggested that the law was a reasonable means to aid parental supervision.
Legal Precedents and Influences
Ginsberg v. New York
In Ginsberg v. New York, the Supreme Court upheld a law prohibiting the sale of sexually explicit material to minors, even if such material was not obscene for adults. The California law sought to extend this rationale to violent content. The majority in Brown, however, found that there was no comparable historical tradition of restricting minors’ access to violent depictions.
Miller v. California
Brown also referenced Miller v. California, which established the modern test for obscenity. The California legislature had modeled its violent video game law on the Miller test, but the Supreme Court found this analogy unpersuasive, as obscenity and violence are treated differently under the First Amendment.
The Decision’s Impact
On the Video Game Industry
The ruling was a major victory for the video game industry, affirming that video games are an expressive medium deserving of full constitutional protection. The industry’s self-regulatory rating system, the ESRB, remains the primary means by which parents are informed about game content.
On First Amendment Jurisprudence
Brown v. Entertainment Merchants Association reinforced the principle that content-based restrictions on speech are subject to strict scrutiny and are rarely upheld. The decision confirmed that new forms of media, like video games, are entitled to the same protections as older forms.
On State and Federal Regulation
The decision effectively preempted similar legislation in other states. Efforts to restrict minors’ access to violent video games have since focused on education, parental tools, and industry self-regulation rather than government mandates.
On Parental Rights and Responsibilities
The Court’s emphasis on parental responsibility has influenced the broader debate over children’s access to media. The ruling suggests that government regulation should be a last resort, with parents and guardians bearing primary responsibility for supervising minors’ exposure to potentially harmful content.
Broader Legal and Social Implications
The Interactive Nature of Video Games
One of the arguments advanced by California was that the interactive nature of video games made them uniquely harmful. The Court rejected this, finding no principled basis for treating video games differently from other media. The decision recognized the evolving nature of artistic expression and technological innovation.
Free Speech in the Digital Age
The case set a critical precedent for how courts evaluate new forms of digital media. As technology continues to advance, Brown stands as a bulwark against government attempts to censor content based on its message or perceived impact, unless such content falls within a historically recognized exception.
Ongoing Debates
Despite the ruling, debates over the impact of violent video games on minors continue. However, the legal landscape is now clear: restrictions based on content must meet the most stringent constitutional standards.
Key Documents and Further Reading
- Supreme Court Opinion (Legal Information Institute)
- Oyez Case Summary and Oral Arguments
- California Civil Code Sections 1746-1746.5 (repealed)
Conclusion
Brown v. Entertainment Merchants Association is a foundational case affirming the First Amendment rights of creators, publishers, and consumers of video games. By striking down California’s attempt to regulate violent video games, the Supreme Court reinforced the principle that the government cannot restrict access to ideas based on content, except in narrow, historically recognized circumstances. The decision placed the responsibility for monitoring children’s media consumption squarely in the hands of parents and guardians, rather than the state.
For attorneys and legal researchers, the case is a touchstone for arguments about the scope of free speech protections, the application of strict scrutiny, and the regulation of new media. For the public and policymakers, it is a reminder of the enduring strength of the First Amendment and the challenges of balancing societal concerns with constitutional liberties.
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Disclaimer: This guide provides a general overview of Brown v. Entertainment Merchants Association and is not intended as legal advice. The case and its nuances are complex, and readers should consult official sources or a qualified attorney for specific legal guidance.
