Supreme Court Holds California Ban on Violent Video Games Violates First Amendment
By Raquel Acosta – Edited by Dorothy Du
Brown v. EMA, No. 08-1448 (June 27, 2011)
Slip Opinion via supremecourt.gov
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 In a 7-2 decision, the Court upheld the lower court decisions and repealed California Assembly Bill 1179 (2005), Cal.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.