First Amendment: Video Games and Free Speech

In Brown v. Entertainment Merchants Association (08-1448), the Supreme Court held that California’s law restricting the sale or rental of violent video games to minors was a violation of the First Amendment.  After California's 2005 enactment of the law, the Entertainment Merchants Association and the Entertainment Software Association brought a pre-enforcement challenge in the U.S. District Court for the Northern District of California.  The court enjoined the statute’s enforcement, holding that it violated the First Amendment.  The U.S. Court of Appeals for the Ninth Circuit upheld the decision. 

Justice Scalia delivered the majority opinion concluding that video games (like more familiar media such as books, plays, and movies) qualify for First Amendment protection.  Arguing that violent video games do not qualify for the same exceptional treatment afforded to obscene materials under First Amendment jurisprudence, the Court held that California’s law constituted a content-based restriction subject to strict scrutiny.  Applying this high level of scrutiny, the majority held that California had failed to demonstrate that the statute was justified by a compelling government interest and was narrowly drawn to serve that interest.   Justice Alito, joined by Chief Justice Roberts, concurred with the Court’s holding, arguing that the statute should be struck down on the basis of vagueness, rather than on First Amendment grounds.  Justice Alito contended that the majority should not be so hasty in concluding that the experience of playing violent video games is no different than reading a book or watching a movie. 

In his dissent, Justice Breyer argued that California had a compelling interest and considerable evidence that the statute would significantly further that compelling interest.  He also contended that the law provided fair notice of what was prohibited and was not impermissibly vague.  Justice Thomas’s separate dissent looked to the original public understanding of the First Amendment.  He contended that, in light of the founding generation’s history, the Framers would have understood freedom of speech to exclude the category of speech to minors.