Schwarzenegger v. Entertainment Merchants Association (08-1448)

Oral argument: Nov. 2, 2010

Appealed from: United States Courts of Appeals for the Ninth Circuit (Feb. 20, 2009)

FIRST AMENDMENT, MINORS, VIDEO GAMES

California enacted California Civil Code §§ 1746–1746.5, which imposed restrictions on the sale of violent video games to minors. The Entertainment Merchants Association and the Entertainment Software Association sought declaratory relief in federal court, alleging that the law was an impermissible restriction of speech in violation of the First Amendment. The district court and the Ninth Circuit ruled in favor of Entertainment Merchants. California appealed, asserting that the First Amendment does not protect the sale of violent video games to minors and that California need not show a direct causal link between violent video games and physical or psychological harm in minors before restricting such sales. The Supreme Court's decision will affect minors' constitutional rights, the power of states to control which materials children are exposed to, and the expression in media with violent content.

Questions presented

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of violent video games to minors?

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Issue

Can a state ban the sale of violent video games to minors, and if so, must the state prove that violent video games directly cause physical and psychological harm to minors for the ban to be constitutional?

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Facts

On October 7, 2005, Petitioner California Governor Arnold Schwarzenegger (“California”) signed into law California Civil Code §§ 1746–1746.5, which prohibits the sale of violent video games to minors. See Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009). This law defined "violent video games" in terms of "killing, maiming, dismembering, or sexually assaulting an image of a human being" possessing "substantially human characteristics" in certain circumstances. See id. at 953–54. The statute imposed a fine of up to $1,000 for violators, as well as new labeling requirements for video games falling under the law's definition of "violent." See id. at 953–54. The statute specifically reflected the California State Legislature’s belief that exposure to violent video games led to an increased likelihood of "violent antisocial or aggressive behavior" and "psychological harm" in minors. See id. at 955.

Before the new law took effect, Respondents Entertainment Merchants Association and Entertainment Software Association, two trade associations that represent various manufacturers of video games, sued the State of California in the United States District Court for the Northern District of California, seeking a declaratory judgment on whether the ban on violent video games was unconstitutional. See Video Software Dealers Ass’n, 556 F.3d at 955. Specifically, the trade associations argued that the law violated the First and Fourteenth Amendments to the United States Constitution. See id.

Much of the evidence at trial concerned the graphic nature of recent video games and the effect such violence might have on minors. California presented a video of several scenes from video games such as Grand Theft Auto Vice City and Duke Nukem 3D that depicted virtual characters being killed or maimed in various ways. See Video Software Dealers Ass’n, 556 F.3d at 955. California also offered evidence purporting to link video-game violence to psychological problems and violent behavior among minors, on which the California State Legislature supposedly relied when it decided to enact the ban. See id. Ultimately, the district court rejected California’s argument and granted Entertainment Merchants Association’s motion for summary judgment, applying strict scrutiny to find the video game ban in violation of the First Amendment. See id. at 955–56.

After California appealed, the United States Courts of Appeals for the Ninth Circuit affirmed the lower court’s decision. See Video Software Dealers Ass’n, 556 F.3d at 961. First, the Ninth Circuit declined to place violent video games in the same category as obscenity, thus rejecting California’s argument that the Supreme Court’s decision in Ginsberg v. New York called for a lower level of scrutiny. See id. So, when it applied strict scrutiny, the Ninth Circuit acknowledged that California had a compelling interest in protecting the physical and psychological welfare of minors. See id. However, the Ninth Circuit was unconvinced that the video game ban would actually accomplish this purpose. Specifically, the Ninth Circuit saw California’s research as “based on correlation, not evidence of causation.” See id. at 964. In other words, although there was evidence of a link between exposure to violent video games and physical or psychological harm, there was insufficient evidence that exposure to violent video games caused physical or psychological harm. See id. As a result, the Ninth Circuit held that California was not able to justify the restriction on freedom of speech imposed by the ban on violent video games. See id. The Supreme Court granted certiorari on April 26, 2010. See Schwarzenegger v. Entertainment Merchants Ass’n, 130 S.Ct. 2398 (2010).

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Discussion

In this case, the Supreme Court will decide whether states may ban the sale of violent video games to minors, and if so, whether states must prove that the video games cause physical or psychological harm to minors for the sales ban to be constitutional.

A Supreme Court decision in favor of Petitioner California Governor Arnold Schwarzenegger (“California”) may expand the narrow category of speech that states may constitutionally keep away from children. California does not dispute that video games are a form of expression covered by the First Amendment but rather argues that violent video games are a form of expression to which the government has a right to restrict minors’ access. See Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950, 958 (9th Cir. 2009); Brief for Petitioners, Arnold Schwarzenegger and Edmund G. Brown at 14–19. Respondents Entertainment Merchants Association and Entertainment Software Association (“Entertainment Merchants”) point out that, so far, the Court has identified sexual obscenity as the only area of expression to which state governments may restrict minors’ access, and they argue that violent content does not warrant a similar exception from First Amendment protection. See Brief for Respondents, Entertainment Merchants Association and Entertainment Software Association at 20–24.

The Court’s decision will also affect the states’ abilities to protect minors from what the states believe are dangerous products. California believes the violent video game ban is necessary to protect minors because of modern video games’ increasingly realistic depictions of violence. See Brief for Petitioners at 14–15, 43. California also cites evidence of a causal link between exposure to violent video games and violent behavior in real life. See id. at 43–45. Eleven states support California and worry about the states' ability to protect the children's welfare if the Court affirms the unconstitutionality of the ban. See Brief of Amici Curiae Louisiana, et al. in Support of Petitioners at 1, 5. These states see California's ban on violent video games as an effort to supplement parental authority; they want "parents, not the marketplace, to raise children." See id. at 5. Ten other states are concerned with the effects of increased government interference with free speech, namely the imposition by state regulators of "necessarily subjective value judgments" and the requirement that law enforcement serve as "constitutional arbiters." See Brief of Amici Curiae Rhode Island, et al. in support of Respondents at 21–22.

Many also believe that the video game industry currently polices itself effectively. As several amici for Entertainment Merchants point out, the Entertainment Software Rating Board already reviews commercially marketed video games for content, including violence, and assigns age-based ratings accordingly. See, e.g., Brief of Amicus Curiae Chamber of Commerce of the United States of America ("Chamber of Commerce") in Support of Respondents at 6–7. These amici fear that a ruling for California will not only burden freedom of speech unnecessarily, but also undermine parental decision-making power. See id. at 8–9. California argues in response that the rating system is voluntary and ineffective in preventing children from buying violent video games. See Brief for Petitioners at 57–58.

More broadly speaking, there is a "chilling" concern; excessive restrictions on free speech may stifle people's willingness to exercise their First Amendment rights. In this instance, concern has arisen for both suppliers and consumers of video games. The U.S. Chamber of Commerce cautions that a victory for California may cause businesses to be more reluctant to invest in mass media, for fear of violating state restrictions on violent content. See Brief of Chamber of Commerce at 15–19. The American Civil Liberties Union additionally worries that this outcome would "deprive minors of a substantial amount of speech to which they are constitutionally entitled." See Brief of Amicus Curiae American Civil Liberties Union in Support of Respondents at 16.

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Analysis

This case considers whether the First Amendment right to freedom of speech protects the sale of violent video games to minors and, if so, whether a state must demonstrate that violent video games cause physical or psychological harm to minors before a state can restrict the sale of violent video games to minors. Petitioner California Governor Arnold Schwarzenegger (“California”) contends that the First Amendment does not apply to the sale of violent video games to minors because states can restrict material that is fully accessible to adults but harmful to children. See Brief for Petitioners, Arnold Schwarzenegger and Edmund G. Brown at 7. California further argues that if the First Amendment did apply, the state is not required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors because courts should defer to a state’s judgment, and California presented sufficient evidence of a relationship between violent video games and aggressive behavior in minors. See id. at 11. On the other hand, Respondents Entertainment Merchants Association and Entertainment Software Association (“Entertainment Merchants”) argue that the First Amendment protects violent video games and that the government cannot ban speech to minors. See Brief for Respondents, Entertainment Merchants Association and Entertainment Software Association at 13–14. Although Entertainment Merchants does not directly argue whether states must prove a direct causal link between violent video games and harm to minors, it implies that states must meet this burden by arguing that California did not show that video games caused aggression in minors in this case. See id. at 15.

Does the First Amendment protect the sale of violent video games to minors?

California first argues that states are permitted to regulate material that is harmful to minors because minors do not have the same First Amendment rights as adults. See Brief for Petitioners at 14. California asserts that minors have fewer First Amendment rights than adults because minors do not possess the same mental capabilities as adults and therefore lack the ability to make rational choices. See id. at 15. To further support its argument, California cites cases where public schools have curtailed students’ free speech rights and argues that the state of California should be allowed the same authority. See id. at 21–22. California adds that parents are entitled to support from the legislature in deciding what materials are appropriate for their children. See id. at 18.

Entertainment Merchants responds that violent video games are fully protected by the First Amendment. See Brief for Respondents at 17–20. Entertainment Merchants disagrees with California’s contention that minors have fewer First Amendment rights than adults and argues that the government can only restrict minors’ constitutional rights in special circumstances, such as regulating speech made in schools or through broadcasting. See id. at 24–27. Entertainment Merchants also rejects California’s assertion that the cases where public schools curtailed students’ free speech rights give the state the general power to regulate material for minors, arguing that those cases only apply to the school environment. See id. at 26. Entertainment Merchants also argues that California did not provide evidence that parents needed governmental assistance in raising their children. See id. at 35–37.

Do Cal. Civ. Code §§ 1746–1746.5 violate the First Amendment?

Restrictions on the First Amendment are evaluated under the strict scrutiny standard, which requires that a law restricting speech must be narrowly tailored to serve a compelling state interest. See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 958 (9th Cir. 2009). Courts have held that protecting children’s well-being is a compelling state interest. See id. at 959. However, in Ginsberg v. New York, the Court created an exception to the strict scrutiny rule, holding that states could restrict the sale of sexual material to minors if it was reasonable for the state legislature to find that the material was harmful to minors. See 390 U.S. 629, 641 (1968). California argues that the Ginsberg standard should apply instead of strict scrutiny. See Brief for Petitioners at 28. California would extend Ginsberg to allow states to restrict minors’ access to any material that is harmful to them. See id. According to California, the Ginsberg standard is appropriate because violent material is equally harmful to minors as obscene or sexual material, and it strikes the right balance between minors’ interests and the interests of parents and the state in preventing minors from accessing harmful material. See id. at 28–38. California argues that Cal. Civ. Code §§ 1746–1746.5 thus do not violate the First Amendment under the Ginsberg standard. See id. at 47.

Entertainment Merchants rejects California’s argument that the Ginsberg standard applies, arguing that Ginsberg only applied to sexual material, and does not authorize the government to regulate other types of speech. See Brief for Respondents at 30. Entertainment Merchants dismisses California’s comparison of violent material to obscenity, claiming that only works that depict sexual conduct are obscene. See id. at 20. Entertainment Merchants finally argues that California ignores the reality that violence is pervasive in children’s entertainment, from the Bible and classic literature to modern children’s books such as Harry Potter. See id. at 30–33.

California argues in the alternative that Cal. Civ. Code §§ 1746–1746.5 satisfy the strict scrutiny standard because they serve the compelling state interest of supporting parents in raising their children and protecting children from harm caused by playing violent video games. See Brief for Petitioners at 40–41, 56. California also argues that Sections 1746–1746.5 are the least restrictive means to accomplish this goal because video game publishers are not required to have their games rated by the Entertainment Software Rating Board ("ESRB"), and parental filtering systems are ineffective. See id. at 56–58. In addition, California adds that Sections 1746–1746.5 are the least restrictive means of protecting children from violent video games because it only prohibits direct sales to minors; the law does not prevent adults from purchasing the video games for themselves or their children. See Reply Brief for Petitioners. Entertainment Merchants responds that the Ninth Circuit was correct in ruling that Cal. Civ. Code §§ 1746–1746.5 failed strict scrutiny review. See Brief for Respondents at 47. First, Entertainment Merchants asserts that California does not have a compelling state interest in preventing minors from having access to constitutionally protected speech that the state finds offensive. See id. at 47–48. Entertainment Merchants reasons that minors have fundamental rights, and that they cannot become well-functioning and independent adults if the state restricts the speech to which they are exposed. See id. at 25. According to Entertainment Merchants, Sections 1746–1746.5 are also not narrowly tailored because they are too broad: under California law, a 17 year-old could not purchase a video game deemed inappropriate for a young child. See id. at 52. Entertainment Merchants offers less restrictive alternatives to Sections 1746–1746.5, such as the current ESRB ratings and parental filtering systems. See id. at 53–54.

Does a state need to prove that violent video games cause physical and psychological harm to minors?

California argues that the First Amendment does not require a state to provide a direct causal link between violent video games and physical and psychological harm to minors. See Brief for Petitioners at 48. California cites studies showing a relationship between playing violent video games and aggressive or antisocial behavior in minors. See id. at 52–56. Relying upon the standard in Turner Broadcasting, Inc. v. FCC, which requires courts to uphold the legislature’s judgment if its determinations were based upon substantial evidence, California asserts that these studies were more than sufficient to support California’s decision that violent video games were harmful to minors. See id. at 11, 48. California also argues that evidence of direct causation is impossible to obtain because researchers cannot ethically or practically isolate minors from all other forms of violence to determine if violent video games have a negative physical or psychological impact. See id. at 48–49.

Entertainment Merchants does not directly address the issue of whether a state needs to provide evidence of a direct causal link between violent video games and physical or psychological harm to minors. However, Entertainment Merchants implies that a state must meet this burden by arguing that the studies cited by California do not prove that video games cause minors to act aggressively. See Brief for Respondents at 38–40. Entertainment Merchants further argues that even the studies that show there is a relationship between violent video games and aggressive behavior do not indicate whether the video games cause minors to act aggressively, or merely if aggressive minors tend to play violent video games. See id. 

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Conclusion

In this case, the Supreme Court will decide whether the First Amendment bars a restriction on the sale of violent video games to minors. California argues that the First Amendment does not protect the sale of violent video games to minors because the government has a right to limit minors’ access to violent video games. California further argues that the state does not need to demonstrate a direct causal connection between violent video games and physical or psychological harm to minors to restrict the sale of video games. On the other hand, Entertainment Merchants contends that violent video games are protected speech under the First Amendment because minors have the same free speech rights as adults. The Supreme Court's decision will affect the extent of minors' constitutional rights, the power of states to control which materials children are exposed to, and the expression of media with violent content.

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Authors

Prepared by: Natanya DeWeese and James Rumpf

Edited by: Joanna Chen

Additional Sources

· Wex: First Amendment

· New York Times, Linda Greenhouse: The Court as Mr. Fix It? (Apr. 30, 2010)

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Edited by: