Entertainment Litigation Update


In This Issue:

Supreme Court Strikes Down Law Prohibiting Sale of Violent Video Games to Minors; The Hurt Locker; and In Re NCAA Student-Athlete Name.

Supreme Court Strikes Down Law Prohibiting Sale of Violent Video Games to Minors: The Supreme Court ended its term by striking down a California ban on violent video games. Brown v. Entertainment Merchants Ass’n, 564 U.S. __, 131 S. Ct. 2729 (June 27, 2011). The majority opinion reinforced that First Amendment protection does not depend on the medium of communication. Thus, video games are entitled to the same protection as Grimm’s Fairy Tales, and attempts to restrict their content will be subject to strict scrutiny.

California passed a law prohibiting the sale or rental of violent video games to minors. The law defined the restricted games as those “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 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.” The definition blended two tests the Supreme Court had adopted in prior decisions, one adopting a restriction on obscene materials specific to minors (Ginsberg v. New York, 390 U.S. 629 (1968)), and the other governing obscenity generally and permitting the standard for restrictions on obscene material to be based on “community standards” (Miller v. California, 413 U.S. 15 (1973)). However, the California statute applied these standards to depictions of violence rather than depictions of nudity or sexually explicit conduct.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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