Brown vs. Entertainment Merchants Assn.

From Censorpedia


The California Law

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In 2005, the California State Legislature passed AB 1179, sponsored by California State Senator Leland Yee. The law prohibited the sale or rental of violent video games to children under the age of 18. Retailers who violated the statute would have been fined up to $1,000. The language of the law was meant to mirror the Miller Test (possibly add internal link to page on Obscenity test here). Violent video games are defined as those games in which "the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." The bill was signed into law by Gov. Schwarzenegger in October 2005. The law would have gone into effect in January 2006.

Legal Challenges

Amicus curiae Briefs

View the Brief Here

The National Coalition Against Censorship (NCAC) joined the ACLU and the National Youth Rights Association to file a brief specifically to raise the issue of minors' speech rights, and to counter the trend to "protect" young people by censoring information and materials that some find offensive, controversial, or harmful.

The brief specifically points out the prevalence of video games sold and played online and argues that the statute is problematic in this regard because it is both difficult to verify a person’s age online and determine their exact location especially if they are able to play the game online without downloading the game’s software to their computer. If the statute is in fact applied to online sale then it will burden the First Amendment rights of adults because if sellers are not able to verify the age and/or location of the users then they will restrict the sale of the game to everyone. According to the Court’s ruling in Butler v. Michigan, 352 U.S. 380 (1957), and Reno v. ACLU, 521 U.S. 844, 875 (1997), this is unconstitutional.

The NCAC also argued that even if the statute did not apply to online sales it would still be ineffective in achieving the goal of the legislation, to restrict the access of minors to violent video games. Minors can and do access video games in numerous ways, either online or from friends and neighbors. It would also not prevent them from being exposed to violent images in other media. Given the fact that there is also evidence that the vast majority of parents do not need (and may not want it) and alternatives exists that are more effective for those parents who do want to block their children from accessing violent games, the violation of first amendment rights is not justified.

Lastly the brief brought up the issue of obscenity. The California statute defines a violent video game as one that appeals to the “deviant” interests of minors”. This implies that there is a healthy interests in violence as opposed to unhealthy interest in violence. Like obscenity law, the statute requires that the game be judged ‘as a whole.’ How is a game that can take up to 50 hours to play and has many different routes to the end (some of which any given player may not ever play) to be judged ‘as a whole?’ And without the ability to judge the game as a ‘whole,’ how can the ‘value’ of the game be assessed, as California law requires?

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District Court Opinion

California's Appeal

Ninth Circuit Appeal

Supreme Court Review

Governor Schwarzenegger again appealed to the Supreme Court, looking to overturn the Ninth Circuit's ruling, filing a writ of certiorari to the Court in May 2009. The Supreme Court agreed to hear the case.


The case was decided on June 27, 2011. The Supreme Court ruled 7-2 that California statute was unconstitutional and that video games are allowed the same protection under the first amendment as books, plays, and movies.

The ruling also asserted that the law was unconstitutional because

  • It would be creating "a new category of unprotected speech", which would unjustly “weigh the value of a particular category against its social costs and then punishing it if it fails the test.” This assertion is based on United States v. Stevens, 559 U. S.
  • Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, California’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.
  • Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively
  • Any 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.
  • California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent.

Using both the United States v. Stevens and Ginsburg vs. New York decisions the court in it's decision created separate standards for regulating the sale of violent content to minors from sexual content.

Justice Scalia delivered the opinion of the Court, arguing

"As a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.There are of course exceptions. From 1791 to the present . . . the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘included a freedom to disregard these traditional limitations… These limited areas—such as obscenity, incitement, and fighting words represent well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,”

  • There is no historical precedent of restricting the depiction of violence. This issue was argued in United States v. Stevens
  • Like protected books, plays and movies, video games communicate ideas and social messages. This warrants first amendment protection.
  • The basic principles of free speech and free press do not vary when a new and different medium appears.
  • The court held in Stevens that new categories of unprotected speech may not be added.
  • The government argued that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. The Court rejected this proposition.
  • Speech about violence is not obscene. Therefore whether the statute mimics the New York statute considered in Ginsburg v. New York is not relevant.
  • Minors are entitled to First amendment protection, only in narrow and well defined circumstances may government bar public dissemination of materials to them. Undoubtedly the state has the power to protect children from harm but that does not include the right to restrict ideas to which children can be exposed.
  • There is no precedent of denying children access to depictions of violence; the books that we give children to read, for example Grimm's Fairy tales are extremely violence (lists examples), and high school books such as the Odyssey are just as violent.
  • California asserts that video games present a unique problem because they are more interactive in that the player participates in the violent action on screen and determines its outcome. However this is not unlike choose your own adventure stories. In addition Scalia quotes Justice Posner about the interactive nature of literature.
  • In order to restrict protected speech, the California law must undergo strict scrutiny in which it is proven that curtailing free speech is the necessary solution and there is a compelling government interest to do so.
  • The California law is unable to do this because it cannot prove a definite causal link between video game violence and harm to minors.
  • The Entertainment Software Rating Board(ESRB) rating system in place sufficiently restricts the sale or rental of adults-only games to minors and "M" rated games to minors with parental consent. The "modest gap" of consumers that aren't regulated is not the government's interest.
  • Also the assertion that the act would be an aid to parents is flawed. It is assuming that all parents feel the same way about their children playing certain video games.

Concurring Opinion

Dissenting Opinion

Justice Breyer argues that

  • When determining if a statute is constitutional using First amendment scrutiny, the court should focus on the protection of children rather than the depiction of violence.
  • In this regard, there are previous cases in which the Supreme Court has ruled that “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachusetts, 321 U. S. 158, 170 (1944). And the “‘regulation of communication addressed to children need not conform to the requirements of the First Amendment in the same way as those applicable to adults.’” Ginsberg v. New York, 390 U. S. 629, 638, n. 6 (1968).
  • The law did not create "a new category of speech." Categories of expression that do not warrant first amendment protection can be broad (i.e. child pornography and other types of obscenity) or specific (i.e. tailored to suit a certain situation such as denying protection to someone that shouts fire in a crowded movie theater).
  • The California statute provides a "fair notice of what is prohibited" and it is not more vague than similar laws that preceded it.
  • The language California statute (specifically the definition of violent video games) mirrors the New York law that the Court considered in Ginsburg v. New York and held to be constitutional.
  • The language used in the statute as well as the reliance on "community standards" is also reminiscent of Miller v. California
  • Even though Miller v. California and Ginsburg v. New York are vague they are both accepted by the court
  • Sex and violence should not be treated separately under the law; there are just as many mentions of sex in literature as there are mentions of violence.
  • The statute puts a modest restriction on expression and it would not create a precedent that would adversely affect other media. A typical video game involves a "significant amount" of physical activity.
  • The court has upheld that there is a “basic” parental claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact “laws designed to aid discharge of parental responsibility,” and the law is within the state’s “independent interest in the well-being of its youth.”
  • Studies have demonstrated a causal relationship between violent video games and psychological harm (they are closer to acting out violence than books or movies).
  • The industry is not able to adequately regulate the sale of M rated games (based on the results of a Federal Trade Commission Study)
  • This case is less about censorship than it is about education-Education means choices and sometimes children are able to make choices for themselves and sometimes parents, teachers and law makers must make those choices

Those critical of the decision have cited Breyer's following criticism of the court's separate treatment of sex and violence. "But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?"


There has been a range of reactions to the case. The articles that were initially published after the decision lauded the case as a victory for first amendment rights. However many are critical of the decision.

Jon Stewart Segment


External Links

Full text of Decision

Article featured on NCAC website