Brown v. Entertainment Merchants Association: Free Speech Ruling

In Brown v. Entertainment Merchants Association (2011), the Supreme Court struck down a California law that banned the sale or rental of violent video games to minors, holding 7-2 that video games are protected speech under the First Amendment and that the state had not shown a compelling reason to single them out.¹

The California Law at Issue

California Assembly Bill 1179, added to the state’s Civil Code, prohibited selling or renting violent video games to anyone under eighteen and required those games to carry a special label on the package.² Retailers who violated the rule faced civil penalties of up to $1,000 per violation.³

To fall under the ban, a game had to meet all of the following:⁴

Allow the player to kill, maim, dismember, or sexually assault an image of a human.
Appeal to a deviant or morbid interest of minors and be patently offensive to community standards.
Lack, as a whole, serious literary, artistic, political, or scientific value for minors.

The definition borrowed the structure of the Miller test used for obscenity but swapped violence in for sexual content.⁵ The industry’s trade associations challenged the law before it took effect.

Video Games as Protected Speech

The Court held that video games communicate ideas through characters, dialogue, plots, and other familiar literary devices, which puts them within the First Amendment’s protection. Interactivity did not change that. The basic principles of free speech do not shift because a medium is new.¹

California had argued that depictions of violence should be treated as a new category of unprotected speech, like obscenity. The Court rejected that argument, saying the government has no free-floating power to restrict speech simply because it is thought harmful to children, and that the recognized categories of unprotected speech do not include violence.²

How the Court Applied Strict Scrutiny

Because the law was a content-based restriction on protected speech, California had to show that it served a compelling interest and was narrowly drawn.¹ It failed on both counts.

The psychological research the state offered did not prove that violent games cause minors to act aggressively. The effects it did show were small and no different from those linked to other media.¹

The law was also underinclusive. There is no historical tradition of restricting children’s access to violent content, and many classic children’s stories contain violence; California nonetheless regulated only video games and left other violent media alone.² And the industry’s voluntary rating system already gave parents a tool to screen game content, which meant the mandatory scheme was not the least restrictive option available.¹

The Vote and the Separate Opinions

The Court decided the case 7-2. Justice Antonin Scalia wrote the majority opinion holding the statute an invalid content-based restriction.¹

Justice Samuel Alito, joined by Chief Justice John Roberts, concurred in the judgment but on narrower grounds, arguing that the statute’s language was too vague to give retailers fair notice of what it covered.⁵ Justices Stephen Breyer and Clarence Thomas each filed a dissent.

The ruling did not require states to permit sales of any particular game, and it left the industry’s voluntary rating system in place. What it foreclosed was a state law that treats violent video games as a category of speech the government may restrict on its own authority.

1
Legal Information Institute. Brown v. Entertainment Merchants Assn. Syllabus
2
Legal Information Institute. Brown v. Entertainment Merchants Assn. Opinion
3
Justia. California Civil Code § 1746.3
4
Justia. California Civil Code § 1746
5
Legal Information Institute. Brown v. Entertainment Merchants Assn. Concurrence