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Brown v. Entertainment Merchants Ass’n

Citation. 564 U.S. 786 (2011)
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Brief Fact Summary.

The respondent challenged a California statute that prohibited the sale or rental to minors of violent video games.

Synopsis of Rule of Law.

Minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may the Government prohibit public dissemination of protected materials to them.


A California statute prohibited the sale or rental to minors of violent video games. The statute defined violent video games as any games that includes killing, maiming, dismembering, or sexually assaulting an image of a human being by a player in a depiction that is offensive to prevailing standards in the community as to what is suitable for minors and causes the game to lack serious literary, artistic or scientific value for minors.


Does the California statute that prohibited the sale or rental to minors of violent video games violate the First Amendment?


Yes, while States possess legitimate power to protect children from harm, that does not give States an absolute power to restrict the ideas to which children may be exposed. Because California has failed to demonstrate that the statute was enacted to further a compelling government interest and was narrowly drawn to serve that interest, the statute is held invalid.


Justice Thomas and Breyer

Thomas: The freedom of speech, as understood by the Framers, does not include a right to speak to minors without going through the minors’ parents. The Framers understood parents to have a right and duty to govern their children’s growth. The Framers could not possibly have understood the freedom of speech to include an unqualified right to speak to minors.

Breyer: California law imposes only a modest restriction on expression because the statute prevents no one from playing a video game. There’s also evidence that the statute significantly furthers a compelling interest based on the state’s psychological studies and expert opinions. This Court shall defer to an elected legislature’s conclusion that video games in question are likely to harm children.


Justice Alito

The Court has failed to recognize that the experience of playing video games may be very different from what it has seen before. Today’s most advanced video games create realistic alternative worlds where many players immerse themselves for hours on end. The games feature visual imagery and sounds that are strikingly real and virtually indistinguishable from actual video footage. In some of these games, the violence is astounding and allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to perform violent acts.


California failed to show a direct causal link between violent video games and harm to minors. The evidence put forth by the State does not indicate that violent video games cause minors to act more aggressively. Moreover, California has not restricted violent images in books or the distribution of pictures of guns. Accordingly, the regulation is widely underinclusive when judged against its asserted justification. Further, California failed to show that the ban met a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so.

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