Today the Supreme Court ruled that California’s statute banning the sale of violent video games to minors is unconstitutional, as it violates the First Amendment’s protection of freedom of speech. A copy of the Supreme Court’s ruling in Brown v. EMA can be downloaded here.
The ruling, a 7-2 decision, features some interesting analysis of video games and their treatment under the First Amendment. For instance, the Court compares the violence depicted in some video games to violence in children’s literature:
Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
The Supreme Court rejects California’s singular focus on the video game industry and highlights examples of other media that arguably arouse violent tendencies in children:
Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. 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.
In affirming the Ninth Circuit’s ruling that California’s statute is unconstitutional, the Court concludes as follows:
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 isseriously 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 scrutiny.
Justice Thomas, in his dissent, provides a long dissertation about the Puritan approach to child-rearing and concludes that
“[t]he freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.
For more about this case, including a summary of arguments for and against the statute, as well as a transcript of the oral argument, visit my firm’s website here.