Violent Video Games Protected Under the First Amendment

On June 27, 2011, the Supreme Court held that a California law banning the sale or rental of violent video games to minors violates the First Amendment. Brown v. Entertainment Merchants Assoc., 584 U.S. ___, 1 (2011).  Earlier, the District Court decided the law violated the First Amendment and the Ninth Circuit affirmed. Id.

The law prohibits the sale or rental of “violent video games” to minors, and requires their labels to be marked with “18.” Cal. Civ. Code Ann. §§1746–1746.5 (West 2009). The law applies to games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a way that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” Id.  Any violation of this law can be punished with a civil fine of up to $1,000. Id.  In its decision, the Supreme Court noted that the California law is too broad “to give people of ordinary intelligence fair notice of what is prohibited” as required by due process.  Brown, 564 U.S. at 2.

In addition to pointing out the law’s vagueness, the Court said the law “wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children” which is “unprecedented and mistaken.” Id. at 6.  Further, a State does not have the “free-floating power” to limit the ideas children may be exposed to, and “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. Id. at 7, quoting Erzonzik v. Jacksonville, 422 U.S. 205, 213-214 (1975).

The Court went on to discuss that the United States has no longstanding tradition of specifically restricting children’s exposure violent images. Brown, 564 U.S. at 8.  For example, fairy tales such as Grimm’s Fairy Tales, Snow White, Cinderella, and Hansel and Gretel contain gore and violence. Id. Also literary works like Homer’s Odyssey and Dante’s Inferno, often read by high-school students, detail acts of violence and bloodshed. Id.  Such literature often captivates the reader and causes him to identify with the characters on an interactive level, much the same as video games do. Id. at 11. Accordingly, the Court was not persuaded by California’s argument that interactive video games pose unique problems because the player participates in the violent acts occurring on screen. Id. at 10.

In his dissenting opinion, Justice Thomas said “ ‘[t]he freedom of speech’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.” Brown, 564 U.S. at 20 (Thomas, J. dissenting).  In his dissenting opinion, Justice Breyer said “[e]ducation…is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.” Brown, 564 U.S. at 19 (Breyer, J. dissenting).

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