Brown v. EMA: Supreme Court Holds California Ban on Violent Video Games Violates First Amendment

Digest Commentary First Amendment

Brown v. EMA, No. 08-1448 (June 27, 2011)

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The Supreme Court affirmed a Ninth Circuit decision that had found that a California law that restricted the sale or rental of violent video games to minors did not comport with the First Amendment and permanently enjoined its enforcement.

Justice Scalia delivered the opinion of the Court.  In a 7-2 decision, the Court upheld the lower court decisions and repealed California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) ("the Act") (a law passed in 2005 by the California State Legislature which required more stringent rating standards on video games), banned the sale of violent video games to anyone under the age of 18, and imposed a maximum $1000 per violation.  The Supreme Court held that video games were afforded the same First Amendment protections as other forms of communication.  Areas in which restrictions on free speech are allowed are limited to obscenity, incitement, and fighting words.  In so holding, the Court rejected the Government’s argument that a balancing test may be used to justify restrictions, holding that a legislature may not add new categories of unprotected speech.

The Virtual World Law Blog provides an overview of the case.  David Kopel, writing for the Volokh Conspiracy, examines the "the weapons effect" (the theory that being exposed to aggressive stimuli will make ordinary individuals more inclined towards aggressive behavior) and uses the Brown decision in his critique of legislative anti-gun laws. Wikipedia provides a thorough analysis of the case and is informative as to the case history and the context in which Brown arises. SCOTUSblog contains an interesting commentary on the litigation strategies used.

The Court reasoned that the California Act did not merely adjust the boundaries of a currently existing category of unprotected speech as in Ginsberg v. New York, 390 U.S. 629, 636 (1968), but instead attempted to establish a new category.  The Court references United States v. Stevens to reject the government’s argument that a new category of unprotected speech may be justified if the benefits outweigh the social costs, stating that there has never been a freedom to disregard the First Amendment apart from the traditional exceptions for obscenity, incitement, and fighting words.  559 U. S. ___ (2010).  When limiting the public dissemination of materials to minors, these exceptions are to be narrow and well-defined. Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975).  Psychological studies presented as evidence by the State were dismissed on grounds that they merely demonstrated correlation, rather than causation, between violent video games and aggressive behavior.  Moreover, the Act was underinclusive, despite the interactive nature of video games, as it did not prohibit children from consuming equally violent cartoons, comic books, and other media.

Justice Alito, joined by Chief Justice Roberts, concurred in judgment, finding the Act was not specific enough in its definition of “violent video games” to provide fair notice to the ordinary person.  The California legislature modified the obscenity test from Miller v. California, 413 U.S. 15 (1973) as it attempted to bring the Act under the protection of Ginsberg, yet Alito opined that due to the differences between obscenity and violence the Act is too vague to avoid having a chilling effect on speech.

Justice Thomas, joined by Justice Breyer, dissented, reasoning that the First Amendment does not extend to a right to speak to minors without attaining the permission of their parents.  The dissent would have held that the Act was prima facie constitutional and reversed and remanded for further proceedings in accordance with their findings.

This case established video games as a protected medium akin to books, movies, or plays but did not remove the possibility of future regulation if the strict scrutiny test is satisfied.  The Court firmly established that legislative attempts to limit otherwise protected speech must fall within the narrow and well-defined exceptions to the First Amendment.

Raquel Acosta is a 2L at Harvard Law School.