6/27. The Supreme Court issued its
Brown v. EMA & ESA, a case regarding whether states can mandate that sellers
label violent video games without violating the First Amendment free speech rights of game
publishers. (This case was previously known as Schwartzenegger v. EMA.)
The Supreme Court held that video games are speech protected by the First
Amendment. A state can only restrict video games content if the
restriction satisfies the Supreme Court's stringent strict scrutiny test. It must
be "justified by a compelling government interest and is narrowly drawn to serve
that interest". The Court held that the California statute did not meet this
test for many reasons, and hence, is unconstitutional. Moreover, under
this opinion, it is unlikely that any content based state statute regulating the
sale of video games would pass constitutional muster.
This is a huge victory for the video game industry. This case also
demonstrates that the Supreme Court continues to apply old free expression
principles to new information technology based platforms.
Nominally, this is a 7-2 outcome. Seven justices votes to affirm the judgment
of the Court of Appeals, which enjoined the state statute. However, the holding
of the Court is based on a fragile 5-4 split, with three of the older justices
in that tenuous majority -- Scalia, Kennedy and Ginsburg. That is, five justices
joined in the opinion that video games are protected free speech, strict scrutiny analysis
applies, and that the California fails under the strict scrutiny standard.
However, two of the seven rejected this broad holding, and merely concurred in
judgment on the very narrow grounds that California's statute is void for
vagueness. That is, under this analysis, California and other states could draft a statute that
regulates video game sales, and pass constitutional muster. In addition, the
remaining two, Breyer and Thomas, would have upheld the California statute.
If one of the five member majority were to retire, the free speech landscape
for video games, and/or other new information technologies, could change overnight.
Statute. In 2005, the California legislature enacted, and the governor
signed, an act that regulates the sale of a "violent video game", which is
defined as games that include "killing, maiming, dismembering, or sexually
assaulting an image of a human being".
It prohibits certain sales to minors, and provides fines for sellers who
violate the statute.
The act also imposes a labeling requirement on sellers -- a two inch by two inch
black and white label on the front of the game's packaging. This act is codified
at California Civil Code §§ 1746-1746.5.
Proceedings Below. The Video Software Dealers Association (VSDA),
which is now the Entertainment Merchant
Association (EMA), and the Entertainment
Software Association (ESA) filed a complaint in the
U.S. District Court (NDCal) against
Arnold Schwarzenegger, in his capacity of Governor of California, and others,
challenging the constitutionality of the act. Edmund Brown is now the Governor,
and hence, the case now bears his name.
The District Court held the act unconstitutional. California appealed. The
Court of Appeals affirmed. See,
titled "9th Circuit Holds California Video Games Statute Unconstitutional" in
TLJ Daily E-Mail
Alert No. 1,902, February 23, 2009.
It held that the act is a "presumptively invalid content-based restriction on
speech", and that it subject to the "strict scrutiny" standard of review, rather
than the "variable obscenity" standard articulated by the Supreme Court in its
1968 opinion in
Ginsberg v. New York, 390 U.S. 629.
The Court of Appeals held that "the Act violates rights protected by the
First Amendment because the State has not demonstrated a compelling interest,
has not tailored the restriction to its alleged compelling interest, and there
exist less-restrictive means that would further the State's expressed
It also held that "the Act's labeling requirement is unconstitutionally
compelled speech under the First Amendment because it does not require the
disclosure of purely factual information; but compels the carrying of the
State's controversial opinion."
The Court of Appeals did not rule on other grounds for challenging the
statute, including void for vagueness and equal protection.
Supreme Court. California petitioned the Supreme Court for writ of
certiorari. The Supreme Court granted certiorari on April 26, 2010. See, story
titled "Supreme Court Grants Cert in Video Game 1st Amendment Case" in
TLJ Daily E-Mail
Alert No. 2,081, April 30, 2010.
Justice Antonin Scalia wrote the opinion of the Court, affirming the judgment
of the Court of Appeals, in which Justices Kennedy, Ginsburg, Sotomayor and
Kagan joined. Justice Alito wrote an opinion concurring in judgment, in which
Chief Justice Roberts joined. Justices Thomas and Breyer both wrote dissenting
Scalia's opinion, at PDF pages 3-20, begins with the statement that "video
games qualify for First Amendment protection."
Moreover, "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." (Parentheses in original.)
Also, "whatever the challenges of applying the Constitution to ever-advancing
technology, ``the basic principles of freedom of speech and the press, like the
First Amendment’s command, do not vary´´ when a new and different medium for
"Because the Act imposes a restriction on the content of protected speech, it
is invalid unless California can demonstrate that it passes strict scrutiny --
that is, unless it is justified by a compelling government interest and is
narrowly drawn to serve that interest."
The statute failed the test because it did not "show a direct causal link between
violent video games and harm to minors".
It also failed because of underinclusiveness. The opinion notes that violence
has long been a part of education and child raising, citing such works as the
Grimm Brothers fairy tales, Disney's movies, great literary works from classical
antiquity, Dante's Inferno, and Saturday morning television cartoons. California
regulates none of these.
The opinion states that "The consequence is that its regulation is wildly
underinclusive when judged against its asserted justification, which in our view
is alone enough to defeat it. Underinclusiveness raises serious doubts about
whether the government is in fact pursuing the interest it invokes, rather than
disfavoring a particular speaker or viewpoint. ... Here, California has singled
out the purveyors of video games for disfavored treatment -- at least when
compared to booksellers, cartoonists, and movie producers -- and has given no
persuasive reason why."
The opinion also concludes that the statute is underinclusive because it
allows children to play violent video games with a parent's approval. "The
California Legislature is perfectly willing to leave this dangerous,
mind-altering material in the handsof children so long as one parent (or even an
aunt or uncle) says it’s OK. And there are not even any requirements as to how
this parental or avuncular relationship is to be verified; apparently the
child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not
how one addresses a serious social problem." (Parentheses in original.)
The opinion also addresses industry ratings systems. "The video-game industry
has in place a voluntary rating system designed to inform consumers about the
content of games. ... This system does much to ensure that minors cannot
purchase seriously violent games on their own, and that parents who care about
the matter can readily evaluate the games their children bring home. Filling the
remaining modest gap in concerned-parents’ control can hardly be a compelling
In conclusion, the opinion states that "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 harmless pastime. And the overbreadth in
achieving one goal isnot cured by the underbreadth in achieving the other.
Legislation such as this, which is neither fish nor fowl, cannot survive strict
Alito's and Roberts' Concurrence. Alito's opinion, which Roberts joined,
is at pages 21-37. It concurs in judgment.
First, he cautioned about applying old First Amendment principles to new
technologies. "In considering the application of unchanging
constitutional principles to new and rapidly evolving technology, this Court
should proceed with caution. We should make every effort to understand the new
technology. We should take into account the possibility that developing
technology may have important societal implications that will become apparent
only with time. We should not jump to the conclusion that new technology is
fundamentally the same as some older thing with which we are familiar."
Second, he rejected the majority's analysis, and concluded that the California statute
must be enjoined on the narrow grounds that it is "impermissibly vague".
Breyer's Dissent. Breyer's dissenting opinion, at pages 58-92, applies
the Supreme Court's traditional analysis, but concludes, unlike the majority,
the the California statute meets the strict scrutiny test. No other justices
joined in this opinion, or reached the same conclusion.
Breyer wrote that the California statute "imposes a restriction on speech
that is modest at most. That restriction is justified by a compelling interest
(supplementing parents’ efforts to prevent their children from purchasing
potentially harmful violent, interactive material). And there is no equally
effective, less restrictive alternative. California’s statute is consequently
constitutional on its face -- though litigants remain free to challenge the
statute as applied in particular instances, including any effort by the State to
apply it to minors aged 17." (Parentheses in original.)
He added that "playing violent video games just might be very
different from reading a book, listening to the radio, or watching a movie or a
Thomas' Dissent. Thomas' opinion, at pages 38-57, confusedly mixes
several elements, including constitutional originalism, the wisdom of Jean
Jacques Rousseau, and good parenting.
Thomas argues that the Court should implement "the original public
understanding of the First Amendment" as it applied to state regulation of
parenting and education. That is, the Court should follow the "practices and
beliefs of the founding generation", or the "most likely public understanding
... at the time it was adopted."
He concludes that this original understanding "does not include a right to
speak to minors (or a right of minors to access speech) without going through
the minors' parents or guardians". (Parentheses in original.)
Thomas asserts that the original understanding was the the First Amendment
did not protect "speech to minor children bypassing their parents". Also, "The
founding generation would not have considered it an abridgment of ``the freedom
of speech´´ to support parental authority by restricting speech
that bypasses minors’ parents."
There are other members of the Court who advocate original understanding as
the best theory of constitutional interpretation. However, only Thomas mentioned
original understanding in his opinion. There may be reasons for this. First, the
original understanding of the First Amendment was that it restricted the federal
government, but not state governments. That is why it begins, "Congress shall
make no law ..." Application of the First Amendment to the states is based upon
the 14th Amendment, a post Civil War addition to the Constitution. Moreover, it
was not until the Supreme Court's development of the incorporation doctrine in
the 20th Century that provisions of the Bill of Rights were extended to the states.
Second, the statute in question relates to parenting and education. The
original understanding of the Constitution was that it gave only enumerated
powers to the Congress. The Constitution enumerated no federal powers related to
parenting or education. Hence, for the purposes of this case, there was no
relevant original understanding.
Next, Thomas sites works on the extent of parental control over the raising
of their children in 17th Century America. He concludes that back then parents
"exercised significant authority over their children, including control over the
books that children read. And laws at the time continued to reflect strong
support for parental authority and the sense that children were not fit to
"Based on these views of childhood, the founding generation
understood parents to have a right and duty to govern their children's growth."
But then Thomas makes a jump. He asserts that the California statute is
inconsistent with this understanding.
Yet, the California statute
regulates only retail sellers of video games. It provides that a "person
may not sell or rent a video game that has been labeled as a violent video game
to a minor". It regulates sellers, and provides for fines of sellers. The
plaintiffs are sellers. The statute does not regulate parents. The majority
opinion of the Supreme Court does not regulate parents; it limits state
authority to regulate sellers. Nevertheless, Thomas has offered an
analysis that would apply to a statute restricting parents' authority to stop
their children from using certain video games, or a court opinion that restricts
But, that is not the end of Thomas' analysis. He then proceeds with the argument that
"The works of John Locke and Jean-Jacques Rousseau were a driving force behind the changed
understanding of children and childhood." He outlines the theory of child
rearing and education advanced by Rousseau in his
book [Amazon] titled Emile. "Locke's and Rousseau's writings fostered
a new conception of childhood" in colonial America.
The method by which judges and lawyers ordinarily argue that a particular
work or writer influenced the original understanding is to cite references to
that work or writer in legislative debates, judicial opinions, published
treatises, and other records from the relevant time period. However, Thomas
cites no 18th Century American references to Emile, or indeed, to any
work of Rousseau.
One reason that judges have not heretofore relied upon Rousseau as an
exemplar -- then or now -- on parenting and education, is that he wrote another
book titled Confessions in which he addressed his own parenting
practices. He bragged that he fathered five children out of wedlock, and
abandoned all to the barbaric orphanages of 18th Century France.
Rousseau wrote that "My third child was accordingly taken to the Foundling
Hospital, like the other two. The two next were disposed of in the same manner,
for I had five altogether. This arrangement appeared to me so admirable, so
rational, and so legitimate, that, if I did not openly boast of it, this was
solely out of regard for the mother". Rousseau also asserted that "I thought
that I was behaving like a citizen and a father, and considered myself a member
of Plato's Republic." (Both quotations are from page 89 of Edmond Hedouin's 1896
translation of Confessions, which is available in Google Books.)
The British philosopher, Bertrand Russell, wrote in his 1946
book [Amazon] titled A History of Western Philosophy that in about
1745 Rousseau "took up with Therese le Vasseur, who was a servant at his
hotel in Paris. He lived with her for the rest of his life (not to the exclusion
of other affairs); he had five children by her, all of whom he took to the
Foundling Hospital." (Parentheses in original. See, Book Three, Chapter XIX,
Reaction. Representatives of the video game industry, and technology
related groups, praised the majority opinion.
Michael Gallagher (at left), head of the ESA,
the victor in this case, stated in a
that "This is a historic and complete win for the First Amendment and the
creative freedom of artists and storytellers everywhere. Today, the Supreme
Court affirmed what we have always known -- that free speech protections apply
every bit as much to video games as they do to other forms of creative
expression like books, movies and music".
Gallagher added that "The Court declared forcefully that content-based
restrictions on games are unconstitutional; and that parents, not government
bureaucrats, have the right to decide what is appropriate for their children."
Ed Black, head of the Computer and
Communications Industry Association (CCIA), stated in a release that "We
are encouraged that the Supreme Court declined to endorse government regulation
of speech in the form on interactive computer games. Every new form of
expression, including motion pictures, comic books, television and the Internet,
has been threatened by the eager hand of the censor. Instead of succumbing to
the techno-panic du jour, the Court reaffirmed more than 200 years of First
Amendment principles, reminding us that neither the states nor the federal
government have the 'freedom to disregard these traditional limitations' on the
regulation of speech."
John Morris, General Counsel of the Center for Democracy
and Technology (CDT), stated in a
release that "We are very pleased that the Supreme Court has embraced the
idea that voluntary ratings systems are one of the best ways to assist parents
in determining what kinds of content their children can view".
Morris added that "The video game industry continues to develop user
empowerment tools that will help parents achieve this goal in a much more
effective -- and constitutional -- way than the California law."
Berin Szoka, head of the TechFreedom, stated in a
release that "The Supreme Court has affirmed that the First Amendment
applies equally to all media, including videogames and other interactive media.
This ensures that free speech will continue to be protected even as technology
evolves in ways scarcely imaginable today."
The ACLU's Steven Shapiro stated in a
release that "This is a Court that takes an expansive view of the First
Amendment. It is particularly sensitive to any claim that the government is
using its power to censor unpopular speakers or unpopular speech".
This case is Edmund Brown, et al. v. Entertainment Merchants Association,
et al., Supreme Court of the U.S., Sup. Ct. No. 08-1448, on petition for
writ certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of
Appeals, App. Ct. No. 07-16620, heard an appeal from the U.S. District Court for
the Northern District of California, D.C. No. CV-05-04188-RMW.