The Supreme Court’s June 27, 2011, decision in Brown v. Entertainment Merchants Association (EMA) invalidated California’s “violent video games” law, which had prohibited sales and rentals to minors and required the games’ packaging to bear a large “18” label on the front. Justice Scalia’s majority opinion reinforced a number of vital First Amendment principles that bar legislative attempts to create new categories of “unprotected speech,” and that establish how relatively little extra leeway the government enjoys even when claiming to regulate in the name of children.
The Court’s opinion, which called California’s law simply “the latest [ ] in a long series of failed attempts to censor violent entertainment for minors,” is significant for a variety of reasons. Perhaps most obviously, it should put to rest state (and local) efforts to regulate “violent” video games. Video game regulation had been introduced in several states and localities, based on a growing (if checkered) body of social science, and were uniformly struck down by federal courts, yet new restrictions continued to be introduced. The decision in Brown v. EMA should bring that treadmill to a halt, and should factor significantly as an bulwark against regulating “violent” content in other media.
The decision in Brown v. EMA reaffirms and applies the decision last Term in U.S. v. Stevens that “without persuasive evidence” that a category of speech “is part of a long (if heretofore unrecognized) tradition of proscription,” that was “never [ ] thought to raise any Constitutional problem,” legislative efforts to treat it as “unprotected” under the First Amendment cannot stand. It also reaffirms the principle that when the State tries to regulate speech simply because it appears in a new medium, it will face the same stringent First Amendment limits as would efforts to regulate “traditional” media.
California’s “violent video game” law restricted sales and required labeling for games that allow players to kill, maim, dismember, or sexually assault an image of a human being, if doing so is depicted in a manner (a) reasonable persons would find appeals to minors’ deviant or morbid interests viewing the game as a whole, (b) that is patently offensive to community standards of “what is suitable for minors,” and (c) that results in a lack of serious literary, artistic, political, or scientific value for minors.”
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