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Brown v. Entertainment Merchants Association
What’s at stake?
Erosion of First Amendment freedom of speech.
Whether a law restricting the sale of violent video games to minors violates the First Amendment.
June 27, 2011
5-2-2 in favor of EMA and striking down the law. Justice Scalia delivered the opinion of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito, joined by Chief Justice Roberts, concurred in the judgment. Justice Thomas and Justice Breyer wrote separate dissenting opinions.
What the court held:
California enacted a law restricting the sale of violent video games to minors. A group of video game manufacturers, distributers, and others challenged the law as a violation of the First Amendment. All parties acknowledged that video games qualify as speech, just like classic literature, comic books, movies, and television, all of which have been known to contain graphic depictions of violence. While certain types of speech, like obscenity, are historically unprotected by the First Amendment, California argued for a new exception for the transmission of offensively violent speech to minors.
The majority, which crossed the usual conservative/liberal lines on the Court, held that no new exceptions should be created, and therefore any attempt to regulate speech based on content must be subjected to the strictest judicial scrutiny. Although California advanced the laudable goal of protecting children’s development, it offered insufficient evidence that violent videogames actually caused harm serious enough to warrant government restriction. As Justice Scalia noted, “there are all sorts of problems – some of them surely more serious that this one – that cannot be addressed by governmental restriction of free expression[.]” Even if the state could legitimately attack the slight harms associated with videogames, the ban on sales was both overinclusive and underinclusive. Saturday morning cartoons and mere pictures of guns have been shown to have similar psychological effects, but were unaffected by the ban. The ban also allowed children with any consenting adult present to access the allegedly harmful material, but prohibited access by minors with consenting parents who weren’t actually present at the time of purchase. Content-based restrictions on speech that, like this law, are not narrowly tailored to the specific problem identified fail to meet the standard of strict scrutiny.
Justice Alito wrote separately to say that he believed the law was unconstitutionally vague in defining what games were restricted, but expressed concern, without deciding, that the interactivity and extreme content of some videogames could warrant some government restrictions. Justice Thomas dissented on the belief that the “founding generation” did not understand the First Amendment as extending to minors. Justice Breyer dissented on the grounds that the potential harm to children was substantial enough and the restriction was slight enough to satisfy strict scrutiny.
With this decision, the Court has reaffirmed that the government may not limit the right of any person to access expressive works simply because they are shocking or offensive, but only when there is demonstrated harm and the restriction narrowly addresses that harm.
- Seattle Times: No need to ban violent video games
- Houston Chronicle: Supreme Court ponders violent video games
- Brief for Petitioner Arnold Schwarzenegger, Governor of the State of California and Edmund G. Brown, Jr., Attorney General of the State of California
- Brief for Respondent Entertainment Merchants Association and Entertainment Software Association
- Reply Brief for Petitioner Arnold Schwarzenegger, Governor of the State of California and Edmund G. Brown, Jr., Attorney General of the State of California
- Brief for the Eagle Forum Education and Legal Defense Fund in Support of Petitioner
- Brief for Louisiana, Connecticut, Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Mississippi, Texas, and Virginia in Support of Petitioner
- Brief for the California State Senator, Leland Y. Yee, PhD., the California Chapter of the American Academy of Pediatrics, and the California Psychological Association in Support of Petitioner
- Brief for Common Sense Media in Support of Petitioner
- Brief for the Marion B. Brechner First Amendment Project and the Pennsylvania Center for the First Amendment in Support of Respondents Seeking Affirmance
- Brief for The Motion Picture Association of America, Inc., Independent Film and Television Alliance, LucasFilm, Ltd., the National Association of Theater Owners, Inc., the Directors Guild of America, Inc., the Producer's Guild of America, Screen Actor's Guild, Writers Guild of America, West, Inc., and the American Federation of Television and Radio Artists in Support of Respondent
- Brief for Comic Book Legal Defense Fund in Support of Respondent
- Brief for the Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in Support of Respondent
- Brief for the International Game Developers Association and the Academy of Interactive Arts and Sciences in Support of Respondent
- Brief for the Computer & Communications Industry Association, the Consumer Electronics Association, Information Technology Industry Council, TechAmerica, Center for Democracy & Technology, and the Digital Liberty Project of Americans for Tax Reform in Support of Respondent
- Brief for the National Cable and Telecommunications Association in Support of Respondent
- Brief for ID Software, LLC in Support of Respondent
- Brief for the First Amendment Coalition in Support of Respondent
- Brief for the CATO Institute in Support of Respondent
- Brief for the American Civil Liberties Union, the National Coalition Against Censorship, and the National Youth Rights Association in Support of Respondent
- Brief for the American Booksellers Foundation For Free Expression, Association of American Publishers, Freedom to Read Foundation, the National Association of Recording Merchandisers, Recording Industry Association of America, Amusement & Music Operators Association, the Association of National Advertisers, Pen Center USA, and the Recording Academy in Support of Respondent
- Brief for the Reporters Committee for Freedom of the Press, the American Society of News Editors, the First Amendment Project, the National Press Photographers Association, the Radio-Television Digital News Association, the Society of Professional Journalists, and Student Press Law Center in Support of Respondent
- Brief for the Rutherford Institute in Support of Respondent
- Brief for the First Amendment Lawyers Association in Support of Respondent
- Brief for Vindicia, Inc., in Support of Respondent
- Brief for Activision Blizzard, Inc., in Support of Respondent
- Brief for the Consumer Electronic Retailers Coalition, Retail Industry Leaders Association, and State Retailer Federations in Support of Respondent
- Brief for Social Scientists, Medical Scientists, and Media Effect Scholars in Support of Respondent
- Brief for Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah, and Washington in Support of Respondent
- Brief for the Future of Music Coalition, the National Association of Media Arts and Culture, and Fractured Atlas in Support of Respondent
- Brief for the Progress and Freedom Foundation and the Electronic Frontier Foundation in Support of Respondent
- Brief for First Amendment Scholars (Professors Cole, Karst, Post, Redish, Van Alstyne, Varat and Winkler) in Support of Respondent
- Brief for the Microsoft Corporation in Support of Respondent
- Brief for the Entertainment Consumers Association, Competitive Enterprise Institute, Consumer Action, the Consumer Federation of America, Public Knowledge, and Students for Free Culture in Support of Respondent
- Brief for the United States Chamber of Commerce in Support of Respondent
- Brief for the National Association of Broadcasters in Support of Respondent