Brown et al. v. Entertainment Merchants Association et al.
United States Supreme Court
Case No. 08-1448

The Supreme Court ruled on Monday, June 27, 2011, that a California law regulating the sale or rental of violent video games to children was unconstitutional on First Amendment grounds. “No doubt a state possesses legitimate power to protect children from harm," said Justice Antonin Scalia, who wrote the majority opinion, "But that does not include a free-floating power to restrict the ideas to which children may be exposed." The California law bars the selling or renting of video games to people under 18 when the games involve killing, maiming, dismembering or sexually assaulting a human being. Retailers who violated the act would have been fined up to $1,000 for each infraction.

In ruling that the California law restricted free expression without valid justification, Justice Scalia was joined by four justices, while Chief Justice Roberts, and Justice Alito filed concurrences, and Justices Thomas and Breyer dissented. This is the first emphatic statement from the nation’s highest court that video games qualify for full First Amendment protections. The court noted that “Like the protected books, plays, and movies that preceded them, videogames communicate ideas—and even social messages…That suffices to confer First Amendment protection…Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”

In addition to confirming video games as free speech, the court drew a line between committing violence, and depicting violence. Citing last year’s 8-1 decision in U.S. v. Stevens, 559 U.S. (2010), striking down a federal law making it a crime to buy and sell depictions of animal cruelty like dog fighting videos, the court found the California statute to be an impermissible content-based restriction on speech, and that “there was no American tradition of forbidding the depiction of animal cruelty -- though States have long had laws against committing it.... As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice."

The court also rejected California’s attempt to create a wholly new category of content-based regulation that is permissible only for speech directed at children. “That is unprecedented and mistaken... No doubt a State possesses legitimate power to protect children from harm... but that does not include a free-floating power to restrict the ideas to which children may be exposed. California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none.” Scalia then went on to cite Grimm’s Fairy tales as examples of gory material we already feed to children. Specifically he talked about the punishment for the evil stepmother in Snow White, who is made to dance in red-hot slippers till she fell dead on the floor. (This is definitely not in the Disney version!)

Justice Thomas’ dissent specifically disagreed with the majority on the point of regulating speech for minors. His dissent asserted the drafters of the First Amendment did not understand it to protect minors’ free speech rights—“The freedom of speech, as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” Justice Breyer also dissented, saying the statute survived First Amendment scrutiny. He relied on studies that he said showed violent video games were positively associated with aggressive behavior, arguing that the court should defer to legislatures, and expert opinions in such cases.

This is a landmark ruling, with implications for more than just violence in video games. As the court noted, this case is the latest in a series of attempts by the California legislature to regulate entertainment content. Industry experts predict that as gaming companies continue to expand their footprint and increasingly use digital distribution methods, including social networking games and mobile titles, legal action relating to privacy and security in games will increase. For more industry analysis, see Gamasutra.