Supreme Court strikes down violent video games ban

[JURIST] The US Supreme Court [official website] on Monday ruled [opinion, PDF] 7-2 in Brown v. Entertainment Merchants Association [Cornell LII backgrounder; JURIST report] that a California ban on the sale of violent video games to minors violates the First Amendment [text]. California Civil Code sections 1746-1746.5 [text] sought to prohibit the sale of violent video games to minors where a reasonable person would find that: the violent content appeals to a deviant or morbid interest of minors; the content is patently offensive to prevailing community standards as to what is suitable for minors; and the content causes the game as a whole to lack serious literary, artistic, political or scientific value for minors. In an opinion by Justice Antonin Scalia, the court ruled that the law does not meet the strict scrutiny standard for limiting free speech. Scalia stated that the violent content of video games is clearly protected, disagreeing with California's argument that violent content is obscene and thus unprotected:

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.
Justice Samuel Alito and Chief Justice John Roberts concurred with striking down the law (for vagueness), but called for a more narrowly tailored law to suppress violent video game purchases by minors. Justices Clarence Thomas and Stephen Breyer each filed dissents. Thomas argued that the original understanding of the First Amendment did not include the rights for minors to speak or be spoken to. Breyer would uphold the law as fulfilling a compelling government interest—aiding parental duties and protecting the well-being of youth—under strict scrutiny. He also argued that the restriction in question was a modest restriction that should be upheld.

The Supreme Court agreed to hear the case last year after the US Court of Appeals for the Ninth Circuit struck down the ban [JURIST reports] as unconstitutional. The bill, originally signed into law by then-California governor Arnold Schwarzenegger in October 2005, prohibited the sale or rental of violent video games to minors under the age of 17, and required retailers to label violent games. In December 2005, US District Court Judge Ronald Whyte issued a temporary injunction [JURIST report] against the enforcement of the law after the Entertainment Software Association (ESA) and the Video Software Dealers Association (VSDA) [trade websites] filed a lawsuit [JURIST report]. Judges have struck down similar laws as unconstitutional in Michigan, Illinois, Minnesota and Louisiana [JURIST reports].

 

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