The decision in Brown v Entertainment Merchants Association was handed down on 27 June 2011. Bram offers a very brief overview of the judgment which presents a variety of approaches to the legitimacy of the California Statute restricting the sale or rental of violent video games to minors.
The majority held that the California Act which prohibited the sale or rental of 'violent video games' to minors and required such games to be labelled '18' was invalid as it violated the First Amendment.
The Act identifies a violent video game as one where: 'the range of options available to a player includ[e] killing, maiming, dimembering, or sexually assaulting an image of a human being.' The game will be subject to legal restriction under the Act if it meets the following three additional requirements:
“(i) A reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors.
“(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
“(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A).
The opinion of the Court was deliverd by Scalia J. He confirmed that video games qualify for First Amendment protection. 'Like the protected books, plays, and movies that preceded them, video games communicate ideas- and even social messages- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.' Because the Act constituted a restriction on the content of protected speech, the Act would be invalid unless California could demonstrate that it was justified by a compelling government interest and was narrowly drawn to serve that interest. The Court held that it failed on both counts. Scalia J noted the fact that it applied only to violent video games, when there is much other violent content, including tehe Saturday morning cartoons which were not covered by the impugned Act, and that the industry had already implemented a voluntary rating system which would assist parents in identifying unsuitable games.
Alito J wrote a concurring judgment on the narrower basis that the statute was too broadly drawn. He did not consider that it was necessary to reach a broader decision that the statute violated the First Amendment. Alito J disagreed with the majority judgment on a number of grounds, notably the assertion that violent video games were no different from violence portrayed in other media. Alito J makes a number of criticisms of the majority judgment, notably; 'the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different.
This theme is also picked up in the dissenting judgments of Thomas and Breyer JJ. Thomas J undertakes a review of attitudes to childhood and child raising at the time the Founding Fathers were drafting the Constitution. He concludes that the concept of 'freedom of speech' as understood at that time could not possibly have included a right to speak to children without going through their parents. Therefore he concludes that the California statute is not unconstitutional as it does no more than restrict sales and rentals direct to minors. Parents and guardians can provide such games to their children if they wished.
Breyer J's decision focusses on the potential harm to children from violent video games. He attaches a long list of studies to his judgment which indicate that such games may cause psychological harm. Thus he concludes that the California statute is justified as it imposes only a modest restriction on speech at most.
The entire judgment is worth a close read.