Entertainment Merchants Association and other plaintiffs filed suit in federal court against California Governor Edmund G. Brown, Jr., and others challenging a state law that prohibited the sale or rental of “violent video games” to minors as a violation of the First Amendment. The law applied to games that allowed a player to kill, maim, dismember, or sexually assault an image of a human being, thus rendering the game lacking in serious literary, artistic, political, or scientific value for minors. The district found in favor of Entertainment Merchants Association and concluded that the law violated the First Amendment. U.S. Supreme Court granted certiorari to review.
Does the California state law, which would impose fines for the sale of violent video games to anyone under the age of 18, violate the video game industry’s First Amendment rights to free speech?
The Court ruled 7-2 in favor of Entertainment Merchants Association
In Brown v. Entertainment Merchants Association, the Supreme Court held 7-2 that banning the sale of violent video games violated the video game industry’s First Amendment right of free speech.
The Supreme Court decided the California law was unconstitutional and violated the First Amendment. The Court stated that video games are considered “speech,” similar to plays and movies, and are therefore protected by the First Amendment. The Court also stated that while the government has the power to restrict certain kinds of speech, like obscenity, there is no history of regulating violent speech. Because this country does not have a history of treating violent speech differently, the Court did not want to create a new category of speech that is not protected by the First Amendment.
The Court then evaluated the California law. Because the law tried to restrict the “speech” of video games based on their violent content, it could only be upheld if California could show that it had a very strong reason for passing the law. The Court decided that the California law failed this test. They said that the connections between video games and aggressive behavior were not well demonstrated, and that there was no evidence that parents needed the state’s help in limiting their children’s access. The justices said the law did not appear to be designed to meet California’s concerns, since it only banned video games and not other violent media. They pointed out that the industry’s age-rating system already meets California’s stated purpose of helping parents.
Chief Justice Roberts and Justice Alito agreed with the judgment of the majority but stated that a more limited law may be constitutional. They said that the California law did not give enough guidance to video game manufacturers and merchants in determining what games would be banned under the state law. Because the law did not give merchants and manufacturers “fair notice” as to what games would be banned, this law was unconstitutional. Furthermore, the Justices pointed out that video games are a new form of media and the Court should not assume that playing violent video games is the same as reading a book or watching a movie. Because the effects of playing violent video games are not entirely certain, the Court may someday find that this media needs to be treated differently than books and movies and may need to be regulated.
Justice Thomas disagreed with the majority. He stated that under the original understanding of the First Amendment, freedom of speech has never included a right to speak to minors, or a right of minors to access speech, without going through the minors’ parents or guardians. Justice Thomas stated the California law is constitutional and should have been upheld.
Justice Breyer also disagreed with the majority, because he believed that California did have a compelling interest in enacting the ban, and it was a narrow enough law to meet the court’s scrutiny. He was convinced by the evidence that violent video games affect children differently than other media, and said the law was not too restrictive, because everyone could still obtain the games—children just need parental permission.