Brown v. Entertainment Merchants Association

PETITIONER: Edmund Gerald Brown, Governor, et al.
RESPONDENT: Entertainment Merchants Association, et al.
LOCATION: California State Legislature

DOCKET NO.: 08-1448
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 564 US (2011)
GRANTED: Apr 26, 2010
ARGUED: Nov 02, 2010
DECIDED: Jun 27, 2011

Paul M. Smith - for the respondents
Zackery P. Morazzini - Supervising Deputy Attorney General of California, for the petitioners

Facts of the case

Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly-enacted law that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law.

On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute "obscenity" under the First Amendment, (2) the state did not not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective.


Does the First Amendment bar a state from restricting the sale of violent video games to minors?

Media for Brown v. Entertainment Merchants Association

Audio Transcription for Oral Argument - November 02, 2010 in Brown v. Entertainment Merchants Association

Audio Transcription for Opinion Announcement - June 27, 2011 in Brown v. Entertainment Merchants Association

Antonin Scalia:

This case is here on writ of certiorari to United States Court of Appeals for the Ninth Circuit.

In 2005, California enacted Assembly Bill 1179, which prohibits the sale or rental of violent videogames to minors and requires their packaging to be labeled 18.

The Act covers 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 manner 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."

Violation of the Act is punishable by a civil fine of up to $1000.

Respondents representing the videogame and software industries brought a pre-enforcement challenge to the Act alleging that it violates the First Amendment.

The District Court agreed and permanently enjoined its enforcement.

The Court of Appeals for the Ninth Circuit affirmed and we granted certiorari.

California correctly acknowledges that videogames qualify as expression protected by the First Amendment, like books plays in movies, video games communicate ideas.

The most basic principle of First Amendment Law is that Government has no power to restrict expression because of its content.

There are, of course, exceptions.

From 1791 to the present, the First Amendment has permitted restrictions upon the content of this -- of speech in a few well-defined and narrowly limited areas, such as obscenity, incitement and fighting words.

Last term in a case called United States versus Stevens, we held that new categories of unprotected speech may not be added to that list by a Legislature that conclude certain speeches too harmful to be tolerated.

Without persuasive evidence that a novel restriction on the content of speech is part of a long tradition of proscription, a Legislature may not revise the judgement of the American people embodied in the First Amendment that the benefits of constitutional restrictions on the Government's power out way its cause.

That holding controls this case.

California statute mimics the New York statute that we upheld in a case called Ginsberg versus New York.

That statute prohibited the sale to minors of sexual material that did not meet our definition of obscenity but that "Appeals to the prurient, shameful or morbid interests of minors, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors and is utterly without redeeming social importance for minors."

We held that New York Court, "adjust the definition of obscenity to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interest of minors."

The California Act, however, does not regulate obscenity for children.

Our cases make clear that obscenity covers only depictions of sexual conduct and we have previously rejected attempt to shoehorn violence into the category of obscenity.

Thus this law 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, it purports to create a wholly new category of content based regulation that is permissible only for speech directed at children that is unprecedented and mistaken.

Our cases hold that minors are entitled to a significant degree of First Amendment protection.

The Government has no free floating power to restrict the ideas to which they may be exposed.

There is no tradition in this country of especially restricting children's access to depictions of violations.

Certainly, the books we give children to read or read to them when they are younger have no shortage of gore.

Grimm's Fairy Tales for example or Grimm indeed, as her just deserts for trying the poison Snow White, but Wicked Queen is made to dance in red hot slippers "till she fell dead on the floor."

Cinderella's evil stepsisters have their eyes pecked out by dogs and Hansel and Gretel killed their captor by baking her in an oven.

High school reading lists are full of similar fare.

Homer's Odysseus binds -- blinds the Cyclops by grinding out his eye with a heated stake and Golding's Lord of the Flies recounts how a schoolboy is savagely murdered by other children while marooned on an island.

In truth, the California Act is the latest in a long serious of failed attempts to censor violent entertainment for minors before videogames came cheap novels depicting crime, they were penny dreadfuls, motion pictures, comic books, television and music lyrics, all of which were blamed by some for juvenile delinquency.

One prominent psychiatrist, who crusaded against comic books, told the Senate Judiciary Committee that, "As long as the crime comic books industry exists in its present form, there are no secure homes."