The Supreme Court today concluded that video games qualify for the same First Amendment protections afforded to books, plays, and films. The Court’s 7-2 opinion in Brown v. Entertainment Merchants Assoc. upheld the 9th Circuit decision overturning a California statute which applied to video games containing the “killing, maiming, dismembering, or sexually assaulting an image of a human being” and punished violators with fines up to $1,000.
Although this decision is the first time the Supreme Court addressed whether video games deserve the protection of the First Amendment, it concerns a 2005 state law that is already somewhat dated due to its focus on retail sales of disc-based games. Much of the recent growth in video game industry has shifted to games that operate online or over mobile wireless networks where access restrictions based on age or parental consent are more difficult to enforce.
Writing for the majority, Justice Scalia determined that the California law failed both prongs of the applicable “strict scrutiny” standard of review: 1) California did not demonstrate a compelling governmental interest in limiting minors’ access to violent games and 2) the state did not choose narrowly tailored means to implement the ban. On the first element, Justice Scalia found the purported connection between video games and increased violence in children unpersuasive, writing “[a]ny demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly under-inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.” On the second element, the opinion noted that the video game industry already offers a voluntary rating system which can guide concerned parents. The Court distinguished its findings from the facts of Ginsberg v. New York, which involved the sale of “obscene” content to children, by remarking that the violence contained in the video games fell outside the Court’s traditional definition of obscenity.
Drawing upon an originalist interpretation of the First Amendment, Justice Thomas argued in dissent that free speech “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.” In his separate dissent, Justice Breyer analogized the video game ban to the limits on selling pornography to minors and stated that the California legislature should be allowed to rely on peer-reviewed studies to make policy decisions regarding children.
California lawmakers behind the ban and conservative groups criticized the decision for allegedly valuing corporate interests over child development. By contrast, video game industry leaders warmly greeted today’s decision as striking the proper balance between free expression and protecting minors. The Motion Picture Association of America similarly praised the Court’s expansion of the First Amendment to recognize new forms of media.
Although other state or federal laws could theoretically be drafted to survive the Court’s strict scrutiny standard of review, the decision will help the video game industry avoid a potentially burdensome state-by-state regulatory compliance regime in the U.S. market.