Brown vs. Entertainment Merchants Assn.
Background
The California Law
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
In 2010, 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. Add this somewhere in the text and link to pdf
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.
Decision
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.
Concurring Opinion
Justice Scalia argues that
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 mentions of violence.
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?"
Reactions
There has been a range of reactions to the case. The articles that were initially published after the decision
