The Supreme Court affirmed an injunction permanently enjoining the enforcement of a California law that restricts the sale or rental of violent video games to minors without the permission of an adult, holding that the law violated the First Amendment. Brown v. Ent. Merch. Ass’n, 2011 WL 2518809 (June 27, 2011); 564 U.S. __ (2011). Justice Scalia delivered the opinion of the court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a separate opinion, concurring in judgment, joined by Chief Justice Roberts. Justices Thomas and Breyer filed dissenting opinions.
In 2005, California passed a statute that prohibited the sale or rental of violent video games to minors and required that their packaging be labeled “18.” The Act restricted access to games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.” Cal. Civ. Code Ann. §1746(d)(1)(A). Representatives of the video game and software industries brought a pre-enforcement claim to permanently enjoin the Act’s enforcement, which the United States District Court for the Northern District of California granted.
Both parties agreed that video games were entitled to First Amendment protection, like any other medium that communicates ideas through familiar literary devices, including books, plays, and movies. Scalia began with the “basic principal” that “[a]s a general matter. . . government has no 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, 573 (2002). The Court noted the limited areas where the Court has allowed restrictions on free speech – obscenity, fighting words, and incitement – and reiterated that a legislature may not add new categories of unrestricted speech to that list because the legislature fears that the speech may be too harmful to be tolerated. United States v. Stevens, 2010 WL 1540082; 559 U. S. ___ (2010).
In Stevens, the Government argued that it could create new categories of restricted speech through a balancing test that evaluated the social value of a category of speech against its social costs. Stevens, 559 U.S., at ___ (slip op., at 7). Scalia asserted that the Court’s rejection of the Government’s argument in Stevens controls the present case. As in Stevens, California tried to make a regulation of violent-speech look like a regulation of obscenity-speech by appending the savings clause of the latter to the former. However, the Court has held that First Amendment restrictions on obscenity only extend to depictions of sexual conduct. Cohen v. California, 403 U. S. 15, 20 (1971).
Even though the statute mimicked a New York statute that the Court upheld regulating obscenity for minors, this case is not comparable because that case allowed states to adjust its definition of obscenities to comport with the social realities facing minors by allowing “this type of material to be assessed in terms of the sexual interests…of…minors.” Ginsberg v. New York, 390 U. S. 629 (1968). Here, however, California does not try to adjust the bounds of an existing category of unprotected speech; the State’s law creates an entirely new category of content-based regulation aimed solely for speech directed at children. Scalia finds this type regulation unprecedented, reaffirming that children are afforded significant protection under the First Amendment and that government can only regulate the public dissemination of protected material to them in relatively narrow, well-defined instances. Erznoznik v. Jacksonville, 422 U. S. 205, 212–213 (1975).
The Court stated that California’s argument would fare better if this country had a history of protecting children from the dissemination of violent material, but there is no such history. Hansel and Gretel killed their captor by baking her in an oven, and Lord of the Flies’ Piggy was brutally murdered by other children. Scalia then likened the video game industry to the television industry before it, and the radio and dime novel industries before television—all of which were charged with encouraging violence in children. Scalia rejected California’s argument that video games are different because they are more interactive. Books have been interactive since the create-your-own ending adventure novels popularized in the sixties.
In order for California’s Act to pass the strict scrutiny afforded to protected speech, the State had to show that there was a compelling government interest and the Act was narrowly drawn to serve that interest. California failed to show a compelling interest, despite its evidence of a correlation between aggressive behavior and video games. The reported effects dissipated soon after the children stopped playing the games. In addition, the aggressive effects researchers found in children after playing violent video games have also been found in children after watching Bugs Bunny and the Road Runner. Further, the statute was not narrowly defined to meet its purported interests. Since the state neglected to ban Saturday-morning cartoons or any other medium that portrays violence to children, its regulation was “wildly underinclusive.”
Scalia noted that California was willing to allow such “dangerous, mind-altering” materials in the hands of children as long as one adult consented, which is not how a government would address a serious social problem. The state’s argument that the Act aided parental authority was unpersuasive because it failed to show that the Act’s restrictions met a substantial need of parents. A report from the FCC showed that the game industry’s voluntary rating system that is already in place has been more effective in keeping inappropriate material out of the hands of children than the music and movie industries’ efforts. Scalia concluded that legislation cannot survive the strict scrutiny applied to protected speech under the First Amendment, even if the state intends to address a serious social problem or aid parents in controlling their children.
Justice Alito, joined by Chief Justice Roberts, concurred in the judgment. Alito found that California’s statute’s definitions of “violent video game,” “deviant” and “morbid” were impermissibly vague. In Miller v. California, 413 U.S. 15 (1973), the Court upheld a statute that restricted the dissemination of obscenity to minors by building upon a prior statute that previously defined a threshold limitation restricting the statutes application to obscenity. Unlike the Miller statute, the violent game law did not perform a narrowing function, aimed at minors, which would put dealers on fair notice as to which material could warrant prosecution. The State merely assumed its standards would be sufficiently well known to a person of average intelligence, without any prior historical norms or consensus on what constitutes “violent” expression. Arguing that the statute is unenforceable due to vagueness, Alito disagreed with the Court’s decision to decide the case on First Amendment grounds. Alito did not believe that this case should have been decided under Stevens, because the regulation at issue in Stevens applied to everyone, not just minors, and Stevens does not require that the law at issue in this case be subject to strict scrutiny. The portion of Stevens which this Court relied upon rejected the Government’s argument that the depiction of animal cruelty was not entitled to any range of First Amendment protection. Alito argued that this reasoning should not be extended to hold that any state that wants to restrict violent video games must satisfy strict scrutiny, rather than the more lenient standard applied to obscenity in Ginsberg. Finally, Alito criticizes the Court as too quick to dismiss the possibility that experience of playing a video game was different from experiencing other mediums. He argued the Court has jumped to the conclusion that new technology is fundamentally the same as older technology and calls on the Court to proceed with caution when applying unchanging constitutional principles to newer, ever evolving technology.
Justice Thomas dissented on the grounds that the Court’s decision did not comport with the original public understanding of the First Amendment. Citing Puritan writings which charged fathers with the absolute right to control the knowledge that entered their children’s heads and Locke’s view that children were blank slates to be molded by their parents, Thomas argued that the founding generation believed in a parent’s right and duty to govern their children’s growth. Justice Thomas concluded that, considering their history, the founding generation could not have understood the freedom of speech to extend to the right to speak to minors without going through the minors’ parents or guardians. Because the only speech affected by the law is speech that bypasses a minor’s parent or guardian, which does not fall within protected freedom of speech, the law at issue is not facially unconstitutional under the First Amendment.
Justice Breyer dissented, finding the law to be facially constitutional. He found that the statute created only a minor restriction on speech because it was targeted only at youths and extremely violent, realistic video games. Breyer also rejected the argument that the language of the statute was uncharacteristically vague, finding no meaningful distinction between the language in the California statute and the language upheld in prior cases restricting obscenity. Addressing Alito’s concurrence, Breyer argued that he found “kill” and “maim” to be just as clear as “nudity” and saw no problem with California’s use of community standards to define violence. Although agreeing with the Court that a very strict standard should be used in judging minors’ access to violent games, Breyer found that California met this standard. The state had two compelling interests: protecting the parental claim to authority in the rearing of their children; and protecting the well-being of California’s youth. While emphasizing the physical actions that are required to play video games, Breyer was less willing to dismiss the evidence that asserts a difference between acting out violence as opposed to passively watching it. In addition, California did not have a less restrictive alternative to its law, pointing to an FCC study that found significant enforcement gaps in the voluntary ratings system (70% of teenagers aged 13-16 were able to buy games rated “Mature”). Breyer concluded that the First Amendment “does not disable government from helping parents make…a choice not to have their children buy extremely violent, interactive video games.”