June 27th, 2011
In Brown v. EMA, a decision released today, the Supreme Court struck down a 2005 California law that limited minors’ rights to buy video games. The law, which never took effect due to constitutional challenges, prohibited the sale or rental of “violent video games” to minors and required certain age labels on violent games’ packaging. Violations of the law could result in fines up to $1,000. Parents could still buy the games for their children.
The 7-2 decision ruled that video games qualify for First Amendment protection. Certain forms of speech are unprotected by the Constitution (e.g., obscenity, incitement and fighting words), but new categories of unprotected speech cannot be added to this list just because the legislature finds it harmful to society. The obscenity exception did not apply in this case because obscenity applies to only depictions of sexual content, not just shocking content. The California law did not adjust the boundaries of an already existing category of unprotected speech (as in Ginsberg v. New York), but sought to create an entirely new category of “content-based regulation that is permissible only for speech directed at children.” The Court found the law’s aim “unprecedented and mistaken.” Additionally, there is no tradition in the US to restrict children’s access to depictions of violence, further undermining California’s claims that the law is constitutional.
As the California law is a content-based restriction, the Court applied the strict scrutiny test, where the law will stand only if it is justified by a compelling government interest and is narrowly drawn to serve that interest. In this case, California did not meet this high burden.
California could not show a direct causal link between violent video games and harm to minors. Psychological studies presented did not indicate that exposure to violent video games effect minors behavior any different from other violent media, upon which California does not impose restrictions. Additionally, the voluntary rating system adopted by the video game industry already allows parents to adequately restrict their children’s access to violent games. The Court found the law both underinclusive in the fast that not all violent media was restricted and overinclusive in the sense that children whose parents allow them to play violent games would be denied the ability to do so.
Justice Alito and Chief Justice Roberts concurred in the judgment that the law was not sufficiently tailored to meet strict scrutiny but disagreed with the majority’s approach to the case, noting that the Court should “make every effort to understand the new technology” rather than “jump to the conclusion that new technology is fundamentally the same as some older things” that are familiar.
Justice Thomas’s dissented, finding the law to not be facially unconstitutional because freedom of speech “does not include a right to speak to minors without going through the minors’ parents or guardians.”
Justice Breyer also dissented: “California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help.” Breyer’s dissent also raises some rational flaws with the majority’s reasoning: “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? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?”
Read the whole 92 page decision for yourself here.