Brown v. Entertainment Merchants Assn.
The Supreme Court struck down a California law that banned selling or renting violent video games to minors, ruling that video games are protected speech just like books and movies.
The decision means states cannot create a brand-new category of speech that only loses First Amendment protection when children are the audience, and it leaves policing children's access to violent games mainly to parents and the industry's own ratings system.
“Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices”
The majority's basis for treating video games as protected speech.
How it got here: A federal trial court struck down the law and the Ninth Circuit affirmed; California asked the Supreme Court to review that ruling.
The Case in Depth
What happened
California passed a law prohibiting the sale or rental of violent video games to minors, requiring an "18" label on covered games and imposing a $1,000 civil fine for violations. Video game and software industry associations sued before the law took effect, arguing it violated the First Amendment rights of game makers, sellers, and the minors who wanted to buy the games.
The question before the Court
Could California ban selling or renting violent video games to minors without violating the First Amendment?
Why it matters
Video game retailers can continue selling M-rated and other violent games to minors without fear of civil fines, and other states cannot easily copy California's approach. Parents remain the primary line of defense, relying on the industry's voluntary rating system rather than government restrictions, to control what games their children buy.
What changes now
This is a final merits decision, so the California law is permanently blocked and cannot be enforced. The video-game industry will continue relying on its own voluntary ratings system to guide parents, and no further proceedings are needed since the Court affirmed the lower courts' rulings striking down the law entirely.
What this does not decide
The Court did not decide whether a more narrowly drawn violence-related law could survive First Amendment scrutiny, and Justice Alito's concurrence would have decided the case only on vagueness grounds without reaching the broader speech question. The ruling also does not address restrictions on games' sale to adults, which California never claimed the power to impose.
Concurrences and dissents
Concurrence — Justice Alito
Justice Alito, joined by the Chief Justice, agreed the law must fall but only because it was unconstitutionally vague, not because it necessarily failed strict scrutiny. He argued the Court moved too quickly in applying sweeping First Amendment principles to new technology and criticized the majority for dismissing evidence that video games' interactivity might make them meaningfully different from books or movies.
Dissent — Justice Thomas
Justice Thomas argued that the First Amendment, as originally understood, never protected a right to speak to children bypassing their parents, drawing on historical evidence of near-absolute parental authority at the founding. He would have upheld the law because it merely restricted direct sales to minors while leaving parents free to buy the games for their children.
Dissent — Justice Breyer
Justice Breyer argued the law was neither unconstitutionally vague nor unable to satisfy strict scrutiny, pointing to substantial scientific and public-health evidence that violent interactive games can harm children more than passive media like television. He would have upheld the law as a modest, well-tailored restriction supporting parental authority and child welfare.
How the Court got there
The legal reasoning, step by step
- The Court began by confirming that video games, like books and movies, communicate ideas through familiar devices and interactive features, so they qualify for First Amendment protection just as other expressive works do.
- Under existing First Amendment doctrine, government generally cannot restrict speech based on its message or content, except for a few historically recognized categories like obscenity, incitement, and fighting words; courts cannot invent new categories of unprotected speech simply by weighing a category's costs against its benefits.
- The Court found California's law tried to create exactly such a new, unprecedented category—violent content aimed at children—without any long-standing historical tradition of restricting minors' access to depictions of violence, unlike the sexual-obscenity tradition that supported a similar New York law in a past case.
- Because the law restricted speech based on content, the Court applied strict scrutiny, the toughest test in constitutional law, requiring a compelling government interest and a law narrowly tailored to serve it.
- The Court concluded California's scientific evidence linking violent games to harm in children was weak and indistinguishable from effects produced by other media, and the law was both underinclusive (ignoring cartoons and other violent media) and overinclusive (blocking games even for children whose parents don't object), so it failed strict scrutiny.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. Stevens (559 U. S. 460)
The Court relies on Stevens' rule that legislatures cannot create new categories of unprotected speech through cost-benefit balancing.
Distinguishes Ginsberg v. New York (390 U. S. 629)
The Court says Ginsberg's obscenity-for-minors approach doesn't extend to violent content because violence isn't part of obscenity.