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Brown v. Entertainment Merchants Association

    Brief Fact Summary.

    Entertainment Merchants Association and others (collectively Plaintiffs) filed suit in federal court against California Governor Edmund G. Brown, Jr., and others (collectively Defendants) challenging a state law that prohibited the sale or rental of “violent video games” to minors as violating of the First Amendment.

    Synopsis of Rule of Law.

    A state law that seeks to prohibit the sale of violent video games to minors must be narrowly tailored to serve a legitimate government interest.

    Facts.

    Entertainment Merchants Association and others (collectively Plaintiffs) filed suit in federal court against California Governor Edmund G. Brown, Jr., and others (collectively Defendants) challenging a state law that prohibited the sale or rental of “violent video games” to minors as violating 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 Plaintiffs and concluded that the statute violated the First Amendment. Plaintiffs appealed and the court of appeals affirmed. The U.S. Supreme Court granted certiorari to review.

    Issue.

    Whether a state law that seeks to prohibit the sale of violent video games to minors must be narrowly tailored to serve a legitimate government interest.

    Held.

    California offered no significant evidence to link violent video games and incidents of harm to minors. The only justification provided by the state is that violent video games tend to make some minors more aggressive. Such a justification is insufficient against the backdrop of the sweeping regulation. Additionally, the law is flawed because although a minor cannot purchase a violent video game, the state legislature is perfectly willing to sell such a game to a parent to then give to the child. This is not the narrow tailoring that restriction of First Amendment rights requires. California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. As a means of protecting children from portrayals of violence, the law is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it allows a parent to purchase the game. And as a means of assisting concerned parents, the law is seriously overinclusive because it abridges the First Amendment rights of young people whose parents and guardians think violent video games are a harmless pastime. The judgment of the court of appeals is affirmed.

    Dissent.

    The “freedom of speech” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. -Thomas

    The interest that California advances in support of the statute is compelling. The state’s legislature seeks to offer a choice to parents that would ban their children from purchasing violent video games. Based upon the Court’s precedent, the First Amendment does not disable government from helping parents make such a choice—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose a risk of harm to those children. – Breyer

    Concurrence.

    Although the majority reaches the correct conclusion, its analysis is flawed. The Court should have taken a harder look at the evolving technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. -Alito

    Discussion.

    Generally, government lacks the power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002). Of course, there are exceptions. Content involving obscenity, defamation, incitement, and specific other categories may be restricted in some circumstances. Video games, like books, plays, and movies, communicate ideas and often social messages through characters and plot. They also enjoy First Amendment protection. The California law does not target adults; it solely targets children. That is unprecedented and mistaken. Minors are entitled to a significant measure of First Amendment protection and the government may only bar materials to them by showing that the law is narrowly drawn to serve a compelling government interest. California cannot meet that standard. While it is true that a state may use its power to protect children from harm, it does not have free reign to restrict the ideas to which children may be exposed.


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