Brown, et al. v. Entertainment Merchants Assn. et al.,
564 U.S. 786 (2011)

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Justia Opinion Summary

Respondents, representing the video game and software industries, filed a preenforcement challenge to California Assembly Bill 1179 (Act), Cal. Civ. Code Ann. 1746-1746.5, which restricted the sale or rental of violent video games to minors. At issue was whether the Act comported with the First Amendment. The Court held that, because the Act imposed a restriction on the content of protected speech, it was invalid unless California could demonstrate that it passed strict scrutiny. The Court held that California had a legitimate interest in addressing a serious social problem and helping concerned parents control their children. The Court held, however, that as a means of protecting children from portrayals of violence, the legislation was seriously underinclusive, not only because it excluded portrayals other than video games, but also because it permitted a parental or avuncular veto. The Court also held that, as a means of assisting concerned parents, it was seriously overinclusive because it abridged the First Amendment rights of young people whose parents think violent video games were a harmless pastime. The Court further held that the overbreadth in achieving one goal was not cured by the overbreadth in achieving the other and therefore, the legislation could not survive strict scrutiny. Accordingly, the court affirmed the judgment of the Ninth Circuit enjoining the Act's enforcement.




certiorari to the united states court of appeals for the ninth circuit

No. 08–1448. Argued November 2, 2010—Decided June 27, 2011

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2–18.

   (a) Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech … do not vary” with a new and different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503. The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See 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. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive. Pp. 2–11.

   (b) Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. 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, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. 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. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so. The Act cannot satisfy strict scrutiny. Pp. 11–18.

556 F. 3d 950, affirmed.

   Scalia, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., joined. Thomas, J., and Breyer, J., filed dissenting opinions.

Primary Holding

The First Amendment extends to video games because they are a form of communication.


As violent video games grew increasingly realistic in their depictions, parents and others became concerned that they would encourage violent tendencies in children. Evidence of any correlation has been inconclusive, but the Entertainment Software Association felt that the issue was sufficiently significant to create its own rating board, similar to the rating system for films. The Entertainment Software Rating Board was founded in 1994 as a self-regulated body that viewed the content of video games before they were released to the public and provided a rating that guided consumers on what ages should access them. The ESA also encouraged distributors of the games to avoid selling titles to people younger than the age groups for which they were designated.

In general, this system was effective in controlling video game distribution, especially compared to parallel regimes in other countries. However, California passed AB 1179 in 2005, which set up a labeling system in addition to the ESRB and categorically prohibited selling violent video games to individuals who were under 18. Penalties would consist of fines not more than $1,000. Mindful of First Amendment protections, the legislature defined the restricted games in a similar manner to the Supreme Court's definition of obscenity. Governor Schwarzenegger signed the law, but even before then the ESA and the Video Software Dealers Association (later the Entertainment Merchants Association) had planned a lawsuit in an effort to eliminate the competing rating system, which they saw as harmful to their economic interests.

Procedural History

US District Court for the Northern District of California - No. C-05-04188 RMW, N.D. Cal. 2005

Injunction granted. The judge was persuaded that the state did not have the authority to restrict the First Amendment rights of children with regard to their access to video games, especially since the evidence on a correlation with teenage violence was disputed.

US Court of Appeals for the Ninth Circuit - 556 F.3d 950 (9th Cir. 2009)

Affirmed. Strict scrutiny is appropriate because the law's prohibition is based on the content of the speech that it restricts, and the government has failed to show either a compelling interest or that it has chosen the least restrictive means to achieve that interest, as required by strict scrutiny review. The conflicting evidence on the correlation between violence in video games and violence in real life meant that the interest was not sufficiently compelling but rather conjectural. Moreover, the voluntary rating system in the video game industry was a less restrictive means of reaching the same objective.



  • Antonin Scalia (Author)
  • Anthony M. Kennedy
  • Ruth Bader Ginsburg
  • Sonia Sotomayor
  • Elena Kagan

Since video games can communicate ideas and messages through devices similar to novels or films, they can be classified as speech and thus are subject to First Amendment protection. Scalia observed that no definition of obscenity included violent content, and he also noted that many children's books contain depictions of violence. He pointed out that the current system functioned effectively, leaving only a small segment of cases about which parents could be concerned. This meant that no compelling interest could be implicated, and he agreed with the Fourth Circuit that the evidence was too inconclusive to find that such an interest even existed.


  • Samuel A. Alito, Jr. (Author)
  • John G. Roberts, Jr.

While he reached the same conclusion as the majority in finding the law unconstitutional, Alito argued that there was little logic in regulating violent content differently from sexual content. He also underscored the majority's skepticism that the evidence showed a meaningful psychological impact of video games on children.


  • Clarence Thomas (Author)

From a paternalistic perspective, Thomas argued that parents historically were intended to have complete control over their children and their development. As a result, he found that the First Amendment could not be interpreted to undermine that authority.


  • Stephen G. Breyer (Author)

Echoing Alito's concern about the double standard for evaluating violence and sex, Breyer noted that depictions of torture and death were arguably more harmful than the more highly regulated depictions of nudity. He argued that the true compelling interest was not protecting children but allowing parents to have the opportunity to raise their children properly so that they could become effectively functioning citizens of the state. He also did not see the law as an overly intrusive restraint and pointed out that the current system still allowed a meaningful percentage of improper sales to slip through.

Case Commentary

There are certain categorical exceptions to First Amendment protections that have been defined by the legislature, and they cannot be expanded from that traditional group. The Court relied heavily on history in making this decision and others related to it. As with Citizens United v. Federal Election Commission and other recent landmark cases, it clashed with public opinion on the topic. Empirical data suggests that a majority of Americans would prefer states to be able to regulate the distribution of violent video games and that most Americans support giving parents substantial control over their children's access to violent content.

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