Brown v. Entertainment Merchants Association
Does the First Amendment prohibit a state from restricting the sale or rental of violent video games to minors without parental consent?
The Decision
7-2 decision · Opinion by Antonin Scalia · 2011
Majority Opinion— Antonin Scaliaconcurring ↓dissent ↓
In a 7–2 decision announced on June 27, 2011, the Supreme Court struck down California's law as a violation of the First Amendment. Justice Antonin Scalia wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan (with Justices Alito and Roberts concurring separately in the judgment).
The majority began by establishing firmly that video games are a form of protected expression under the First Amendment, just like books, plays, movies, and other media. Justice Scalia wrote that video games communicate ideas through familiar literary devices — characters, dialogue, plot, and music — and that the interactive nature of games does not make them any less deserving of constitutional protection. The Court emphasized that the basic principles of free speech do not vary with a new and different communication medium.
The Court then addressed whether violent content directed at minors could be regulated the way sexually obscene content can be. The majority concluded it could not. Justice Scalia surveyed the long history of American law and found no tradition of restricting children's access to depictions of violence. He pointed out that Grimm's fairy tales, classic literature, and Saturday morning cartoons have always exposed children to violence, and that the government has never had the power to restrict such material. The concept of 'obscenity' as a category of unprotected speech, the Court held, has always been confined to sexual content and cannot simply be expanded to cover violence.
Because the California law was a content-based restriction on protected speech, the Court applied strict scrutiny — the most demanding standard of constitutional review. Under strict scrutiny, the government must demonstrate that the law serves a compelling state interest and that it is narrowly tailored to achieve that interest. The Court found that California failed on both counts. The research studies California presented showed at best a modest correlation between exposure to violent video games and small, temporary effects on children's feelings of aggression — not proof that violent video games cause real-world harm to minors. The Court stressed that the government cannot restrict free expression based on speculation, ambiguous research, or legislative hunches; it must provide direct evidence of actual causation. Furthermore, the law was both underinclusive and overinclusive: it left children free to access equally violent content in books, movies, and television, yet it restricted access to games regardless of whether a parent approved. The existence of the industry's own voluntary rating system further undercut the state's claim that the law was necessary.
The Court therefore affirmed the Ninth Circuit's decision and held that the First Amendment bars the government from restricting the sale of violent video games to minors.
Concurring Opinions
Justice Samuel Alito, joined by Chief Justice John Roberts, concurred in the judgment but wrote separately to express concern that the majority too casually dismissed the possibility that highly realistic, interactive violent video games could pose unique psychological dangers to children that older forms of media do not. Alito would have struck down the law on narrower grounds — that its definition of 'violent video game' was unconstitutionally vague — rather than broadly holding that violent content directed at minors can never be regulated.
Dissenting Opinions
Clarence Thomas
Justice Thomas argued that the First Amendment, as originally understood at the time of its adoption, did not include any right to speak directly to other people's children without going through their parents. He believed the California law was entirely consistent with the historical understanding of parental authority over children's access to information.
- The Founding-era understanding of the relationship between parents and children placed parents as absolute gatekeepers over what information and ideas reached their children, and there was no recognized right of outsiders to bypass parental authority.
- Because the original meaning of the First Amendment did not protect a right to provide material directly to minors without parental consent, the California law restricting video game sales to unaccompanied minors was constitutionally permissible.
Stephen Breyer
Justice Breyer argued that the California law should be upheld because the state had a compelling interest in supplementing parental efforts to protect children, and that the evidence linking violent video games to harm in children was at least as strong as the evidence courts have accepted for restricting minors' access to sexual material.
- It is logically inconsistent to allow states to prohibit selling a magazine with a picture of a nude woman to a 13-year-old, while forbidding states from restricting the sale of an interactive game that lets the same child actively simulate torturing and killing human beings.
- The studies presented by California were sufficient to satisfy a deferential form of scrutiny, and the majority set an unreasonably high evidentiary bar that no government could realistically meet when legislating to protect children.
- The voluntary industry rating system, while useful, is not a substitute for legal regulation because it is not universally effective and many parents either do not understand it or cannot consistently enforce it.
Background & Facts
In 2005, California enacted Assembly Bill 1179, which prohibited the sale or rental of 'violent video games' to anyone under 18 years old and required such games to be labeled with a conspicuous '18' marker. The law imposed a civil fine of up to $1,000 on any retailer who sold or rented a qualifying violent game to a minor. The statute defined a 'violent video game' by borrowing and adapting the legal framework traditionally used to define obscenity: it targeted games in which a player could kill, maim, dismember, or sexually assault a human image in a way that a reasonable person would find appealed to a 'deviant or morbid interest' of minors, was patently offensive to prevailing community standards for minors, and lacked serious literary, artistic, political, or scientific value for minors.
The Entertainment Merchants Association and the Entertainment Software Association — two trade groups representing video game retailers, distributors, and publishers — immediately sued to block the law before it took effect. They argued that the statute violated the First Amendment's guarantee of free speech because video games are a form of protected expression, and that the government cannot restrict access to violent (as opposed to sexually obscene) content even when minors are involved.
The U.S. District Court for the Northern District of California agreed with the challengers and issued a permanent injunction preventing the law from being enforced. The court found that California had not demonstrated a compelling interest served by the law and that the statute was not narrowly tailored. The Ninth Circuit Court of Appeals affirmed, holding that the law was an unconstitutional content-based restriction on protected speech that could not survive strict scrutiny.
California's governor at the time of the appeal, Edmund G. Brown Jr. (the case had originally been filed under Governor Arnold Schwarzenegger), petitioned the U.S. Supreme Court to review the decision. The Supreme Court agreed to hear the case because the question of whether states could treat violent material aimed at children the way they treat sexually explicit material — as a category of expression subject to greater regulation — was a significant and unresolved constitutional issue with national implications for both the entertainment industry and child welfare policy.
The Arguments
California argued that the state has a compelling interest in protecting the physical and psychological well-being of minors, and that violent video games cause real harm to children. The state contended that the same principles that allow government to restrict minors' access to sexually explicit material should also permit restrictions on extremely violent content marketed to children.
- The government has historically been allowed to protect children from harmful material, and this law simply extended that well-established authority to cover depictions of extreme violence, not just sexual content.
- Studies by psychologists and researchers demonstrate a connection between playing violent video games and increased aggression, desensitization to violence, and antisocial behavior in minors.
- The law was modeled on the legal framework for obscenity from Miller v. California and was narrowly tailored, targeting only the most egregiously violent games that lack serious value for minors, not all depictions of violence.
The Entertainment Merchants Association argued that video games are fully protected speech under the First Amendment, that violent content has never been treated as a category of unprotected expression like obscenity, and that California's law was an unconstitutional content-based restriction that failed strict scrutiny.
- The First Amendment does not permit the government to create new categories of unprotected speech — obscenity doctrine has always been limited to sexual content, and there is no historical tradition of restricting children's access to violent imagery.
- The research California relied upon showed at most a correlation between violent video games and minor, temporary increases in aggression, not a causal link to actual harm to minors — far from the proof required to pass strict scrutiny.
- The video game industry already has a robust voluntary rating system (the ESRB rating system) that informs parents about game content, making the law unnecessary and demonstrating that less restrictive alternatives exist.