Brown v. Entertainment Merchants Association

Brief Fact Summary.

California passed CAB 1179, prohibiting the sale of violent video games to minors. The video game community filed a lawsuit, arguing that this law was unconstitutional as a violation of the First Amendment.

Synopsis of Rule of Law.

The government has no power to restrict expression because of its content, with four exceptions.

Facts.

California passed CAB 1179, prohibiting the sale of violent video games to minors. The video game community filed a lawsuit, arguing that this law was unconstitutional as a violation of the First Amendment freedom of speech. Each level of the court struck down the law as unconstitutional, finally affirmed by the Supreme Court.

Issue.

Does a California law imposing restrictions on violent video games violate the First Amendment?

Held.

Yes, the California law violates the First Amendment and is therefore unconstitutional.

Dissent.

Justice Thomas

The First Amendment should be read more narrowly than this. At the time of the Founding, society believed that parents had absolute control over their children. Freedom of speech does not include a right to speak to minors without going through their parents.

Justice Breyer

The law should be withstand the constitutional challenge as a law for the protection of children. The government has greater power when dealing with children than with adults. There is no less restrictive alternative possible.

Concurrence.

Justice Alito (with Roberts)

Agree with the outcome, but we should be more respectful of emerging technology and science that might be showing us the extent of a problem. New technology (video games) should not automatically be compared with old technology (literature).

Discussion.

Free Speech Clause exists to protect discourse on public matters, but it applies to entertainment too because it is too difficult to separate them. The government has no power to restrict expression because of its content, with four exceptions. The exception relevant here is obscenity, which only includes depictions or descriptions of sexual conduct, not violence.

Minors are also entitled to the First Amendment, and so a government does not have free-floating power to control what they have access to.

There is no long-standing tradition in the U.S. of limiting consumption of violent material. Most fairytales are violent. It does not matter that the video games are “interactive.” Literature is interactive, too.

This law is a restriction on the content of protected speech, so California must show that the law passes strict scrutiny. It cannot show compelling governmental interest because there is a causal link between between violent video games and harm to minors. And it cannot show that it is narrowly tailored because the law is broad.

The California law addresses a serious social problem and purports to help concerned parents control their children. These are legitimate interests, but not important enough to overcome the First Amendment concerns.