Brown v. Entertainment Merchants Association: Ruling and Impact

In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), the Supreme Court ruled 7–2 that video games are protected speech under the First Amendment and struck down a California law that would have banned their sale or rental to minors. The decision came down on June 27, 2011, with Justice Antonin Scalia writing for the majority. It held that states cannot invent a new category of unprotected speech based on violent content, and that California’s law failed strict scrutiny.¹

The California Law at the Center of the Case

California Assembly Bill 1179, signed by Governor Arnold Schwarzenegger on October 7, 2005, prohibited selling or renting “violent video games” to anyone under 18 and required covered games to carry a large “18” label on the front of the package. Violations carried civil fines of up to $1,000, though retail clerks were shielded from personal liability. Parents, grandparents, aunts, uncles, and legal guardians could still buy the games for a minor.²

The statute borrowed its structure from obscenity law. A “violent video game” was one in which the player could kill, maim, dismember, or sexually assault a human image, if the content appealed to a “deviant or morbid interest” of minors, was “patently offensive” by community standards, and lacked serious literary, artistic, political, or scientific value for minors. An alternative definition reached games letting players inflict “especially heinous, cruel, or depraved” injuries involving torture or serious physical abuse.²

How the Case Reached the Supreme Court

The industry sued before the law could take effect. On October 17, 2005, the Video Software Dealers Association (later the Entertainment Merchants Association) and the Entertainment Software Association filed a pre-enforcement challenge in the Northern District of California.³

Judge Ronald Whyte issued a preliminary injunction on December 21, 2005, then made it permanent on August 6, 2007, finding California had not shown video games deserved different treatment from other media or that the research established a causal link between violent games and harmful behavior. The Ninth Circuit affirmed on February 20, 2009. The Supreme Court granted certiorari in 2010, and by then Jerry Brown had replaced Schwarzenegger as governor, giving the case its familiar caption.¹ California’s effort was not the first of its kind. Courts had already struck down similar laws in Illinois, Louisiana, Michigan, Minnesota, Oklahoma, Washington, Missouri, Indiana, and other jurisdictions. Every state law seeking to restrict minors’ access to violent games had been found unconstitutional.⁴

Video Games as Protected Speech

The core holding was direct. Video games qualify for First Amendment protection on the same footing as books, plays, and movies. They “communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”¹ Scalia rejected the argument that interactivity justified lesser protection, observing that all literature is interactive in the sense that it draws the reader into the story.⁵

The majority devoted considerable attention to history. There is, Scalia wrote, “no tradition of specially restricting children’s access to depictions of violence.” He walked through Grimm’s Fairy Tales (the queen forced to dance in red-hot slippers until she dies, stepsisters having their eyes pecked out by doves), Homer’s Odyssey, Dante’s Inferno, and William Golding’s Lord of the Flies. He also traced a long line of moral panics over new media — dime novels blamed for delinquency in the 1800s, motion pictures accused of leading youth to prison in the early 1900s, and a mid-century campaign against comic books — none of which had produced a constitutional basis for regulation.⁵

Why the Obscenity Framework Did Not Extend to Violence

California’s central move was to treat violent content the way obscenity law treats sexual content. The Court rejected that outright. The obscenity exception, Scalia wrote, is limited to depictions of sexual conduct, and “disgust is not a valid basis for restricting expression.”⁶

The Court distinguished Ginsberg v. New York, the 1968 decision that allowed states to restrict minors’ access to sexually explicit material. Ginsberg adjusted the boundaries of a category of unprotected speech that already existed. California was asking for something far more ambitious: “a wholly new category of content-based regulation that is permissible only for speech directed at children.”¹ The Court refused to create it.

Why the Law Failed Strict Scrutiny

Because the statute imposed a content-based restriction on protected speech, California had to prove the law served a compelling interest and was narrowly tailored to it. It failed on every axis.

The evidence didn’t hold up. The psychological research California cited showed at most a modest correlation between violent games and aggressive feelings, with effects “small and indistinguishable from effects produced by other media.”⁶

The law was badly underinclusive. It reached video games but left Saturday morning cartoons, violent movies, and books untouched. That inconsistency, the Court said, suggested California was “disfavoring a particular speaker or viewpoint” rather than addressing a genuine harm.⁷

It was also overinclusive. The ban applied even when parents had no objection, and the exception that let a parent, aunt, or uncle buy the game for the child actually cut against California’s claim that the content itself was harmful.¹

And a less restrictive alternative already existed. The Entertainment Software Rating Board’s voluntary rating system was serving the purpose California claimed to pursue. A Federal Trade Commission report had found that the video game industry “outpaces the movie and music industries” in restricting the marketing and sale of mature-rated products to children.⁶

The Concurrence and the Dissents

Justice Samuel Alito, joined by Chief Justice John Roberts, agreed the law had to fall but reached that result through vagueness rather than a categorical First Amendment ruling. He argued the statute’s definition of “violent video game” was too unclear to satisfy due process, and expressed more openness than the majority to the possibility that interactive violence might one day warrant different treatment from violence in books or movies.¹

Justice Clarence Thomas dissented alone on originalist grounds. He argued the First Amendment, as understood by the founding generation, did not include a right for third parties to speak to minors without parental consent. Because the California law only restricted speech that bypassed parental authority, he would have upheld it.⁸

Justice Stephen Breyer also dissented, favoring a balancing approach over strict scrutiny. He read the research on violent games as “considerably stronger” than the majority acknowledged, citing longitudinal studies, experimental findings, fMRI-based neuroscience research, and meta-analyses treating violent games as a “causal risk factor for long-term harmful outcomes.” He also pointed to what he saw as an inconsistency: if states may restrict minors’ access to sexually explicit material, they should be able to regulate interactive depictions of “torture and death.”⁹

What the Ruling Has Meant Since

The decision effectively ended the decade-long push to regulate violent video game content by statute. By confirming that games get the same First Amendment protection as books and films, and refusing to carve out violent content as a new unprotected category, the Court set a bar no state had come close to meeting. No state has enacted a comparable law since.¹

The opinion has also shaped how the Court thinks about First Amendment protection for new technologies more broadly. In 2024, the Court cited Brown in the consolidated cases Moody v. NetChoice and NetChoice v. Paxton, which addressed state laws regulating how social media platforms moderate content. The Court invoked Scalia’s principle that the “basic principles” of the First Amendment “do not vary” when new communication technologies emerge.¹⁰

1
Justia. Brown v. Entertainment Merchants Assn.
2
California Legislative Information. AB 1179 Chaptered Text
3
Media Coalition. Brown v. Entertainment Merchants Association
4
Entertainment Software Association. Court Rulings on Video Game Legislation
5
Cornell Law Institute. Brown v. Entertainment Merchants Assn., Opinion of the Court
6
Library of Congress. Brown v. Entertainment Merchants Assn., 564 U.S. 786
7
Cornell Law Institute. Brown v. Entertainment Merchants Assn., Syllabus
8
Cornell Law Institute. Brown v. Entertainment Merchants Assn., Thomas, J., Dissenting
9
Cornell Law Institute. Brown v. Entertainment Merchants Assn., Breyer, J., Dissenting
10
Supreme Court of the United States. Moody v. NetChoice, 603 U.S. ___