Brown v. Entertainment Merchants Association
**Brown v. Entertainment Merchants Association Overview**
Brown v. Entertainment Merchants Association is a significant Supreme Court case addressing the intersection of video game content regulation and First Amendment rights. The case originated after California enacted a law in 2006 prohibiting the sale of violent video games to minors, defining violent games as those allowing players to engage in extreme acts of violence. The law faced legal challenges from trade associations representing the video game industry, which argued that the law infringed on free speech rights. In a 2011 ruling, the Supreme Court determined that the California law failed to meet the strict scrutiny standard required for content-based speech restrictions, ultimately affirming lower court decisions that deemed the law unconstitutional.
The Court's majority opinion, authored by Justice Antonin Scalia, emphasized that the evidence presented by California did not convincingly demonstrate that violent video games cause real harm to minors. This ruling extended First Amendment protections to video games, aligning their status with that of books and movies. While the decision reinforced existing free speech protections, it left room for the possibility of future regulations if they could meet strict constitutional criteria. The case highlighted the complex relationship between societal concerns regarding media violence and the legal principles governing free speech, prompting ongoing debate about the role of social science in shaping laws related to expressive content.
Brown v. Entertainment Merchants Association
Date: June 27, 2011
Citation: 564 US ‗‗‗ 2011
Issue: First Amendment
Significance: In a 7–2 decision the Supreme Court of the United States determined video games are protected by the First Amendment of the U.S. Constitution. This decision overturned a California state law banning the sale of violent video games on the grounds that California did not show compelling state interest in restricting free speech.
Background
The issue of violence in video games raised increasing concerns among some parents and lawmakers, especially as game graphics became more realistic and some games became increasingly explicit in the acts depicted. In 2006, California Governor Arnold Schwarzenegger signed into law an act banning the sale of violent video games in the state to minors under age 18. It defined games as violent "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being" (Fisher, 527).
Two trade groups, the Video Software Dealers Association (VSDA) and Entertainment Software Association (ESA) filed federal suit against the law on First Amendment grounds. In 2007, a U.S. district court ruled that the state law was unconstitutional. In 2009, a federal court of appeals upheld that decision. In its ruling, the appeals court said that the state law, in regulating the content of speech, had to pass the "strict scrutiny" test. Under this test, to be constitutional a law must be written in a "narrow" way to address a "compelling state interest" (Legal Information Institute). This test had been applied to content-based speech restrictions by the U.S. Supreme Court in an earlier case, Sable Communications of California v. FCC (1989).
California asked the Supreme Court to review the appeals court decision, and the Court took the case. It accepting the case, the Court posed two questions for the two sides to answer in their arguments: (1) Is a law restricting the sale of violent video games allowed under the First Amendment; and (2) if so, does the state have to show evidence that such games are related to actual harm to minors? (Supreme Court of the U.S. 1). The Court heard oral arguments in November of 2010. By the time the Court ruled, Jerry Brown was governor of California and was thus the named appellant.
Opinion of the Court
In a 7–2 decision, the Supreme Court ruled that the state law did not meet the "strict scrutiny" standard and affirmed the appeals court decision. Justice Antonin Scalia, writing for the majority, said that the law, in being applied only to minors, incorrectly created a new category of unprotected speech. He called state claims that interactive video games were particularly dangerous, based on social science research the state presented, "unpersuasive." Scalia detailed how the state law failed to meet the strict scrutiny standard:
- Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.
Justices Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, and Sonia Sotomayor joined in Scalia’s opinion. Chief Justice John Roberts joined the concurring opinion written by Associate Justice Samuel Alito. Alito objected to the law because the grounds for defining objectionable content were too vague. However, he registered his dismay at the graphic nature of the content—a position Scalia dismissed by saying "disgust is not a valid basis for restricting expression."
Justices Clarence Thomas and Stephen Breyer filed separate dissents. Thomas said that freedom of speech, as understood by the Framers of the Constitution, "does not include a right to speak to minors without going through the minors’ parents or guardians." Breyer argued that the definitions of violence in the California law were in fact more clear than definitions of other terms in earlier free-speech cases in which the Court had upheld restrictive laws. Breyer said the limits placed by the law were only a "modest restriction." Finally, citing a great many social science studies, he agreed with California’s argument that "extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life."
Impact
The Court’s decision in Brown v. Entertainment Merchants Association had some significant implications. First, it extended First Amendment protections long enjoyed by books and movies to video games. Second, it reinforced the Court’s stance made the year before in United States v. Stevens(2010), when it struck down a law against creating, selling, or owning images of cruelty to animals. In Brown, Justice Scalia summarized the position in Stevens: ". . . new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." In other words, abhorrent speech can still be protected speech.
According to some legal scholars, the decision did not mean that any law limiting video game violence would be doomed to the Court’s rejection. Some argued that carefully crafted laws that meet the "strict scrutiny" standard could be allowed, pointing to the Court’s 1968 decision in Ginsberg v. New York upholding a state statute limiting minors’ access to pornography (Fisher, 545–546). According to other scholars, there could still be an opening for such a law in the Roberts Court. Justices Alito and Roberts both expressed deep concern over the content of some games and their potential for harm. Had they seen the law as less vague, they might have voted to uphold (Post, 51). Another implication of the decision was the effect of social science scholarship upon the judicial system. California had offered many studies linking violent content, including in video games, to violent behavior. Scalia rejected this argument, but Justice Breyer, in his dissent, made use of such studies as the basis for his acceptance of the state’s position that there was a connection, thus justifying the law. Reacting to these divergent views, some scholars argued that social scientists can educate lawmakers and judges about the kind of social science studies that are applicable. Such studies could be offered as evidence if they are sufficiently connected to the real world and meet judicial standards. (Clay, Bunker, and Bissel, 294)
Bibliography
Brown v. Entertainment Merchants Association. 564 US ‗‗‗ 2011. Supreme Court of the United States. Supreme Court of the U.S., 2011. Web. 11 Nov. 2015. <http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf>.
"Brown v. Entertainment Merchants Association." Media Coalition. Media Coalition, n.d. Web. 11 Nov. 2015. <http://mediacoalition.org/brown-v-ema/>.
Calvert, Clay, Matthew D. Bunker, and Kimberly Bissell. "Social Science, Media Effects and the Supreme Court: Is Communication Research Relevant After Brown v. Entertainment Merchants Association." UCLA Entertainment Law Review. 19.2 (2012): 293–328, Print.
Fisher, Jessica. "Brown v. Entertainment Merchants Association: ‘Modern Warfare’ on First Amendment Protection of Violent Video Games." Journal of Business and Technology Law 8.2 (2013): 525–547. Print.
Legal Information Institute. "Strict Scrutiny." Cornell University Law School, n.d. Web. 11 Nov. 2015. <https://www.law.cornell.edu/wex/strict‗scrutiny>.
Lidsky, Lyrissa Barnett. "Not a Free Press Court?" Brigham Young University Law Review. 2012.6 (2012): 1819–1835. Print.
Minow, Martha. "The Big Picture: Justice Breyer’s Dissent in Brown v. Entertainment Merchants Association." Harvard Law Review 128.1 (2014): 469– -475. Print.
Post, David G. "Sex, Lies, and Videogames: Brown v. Entertainment Merchants Association." Cato Supreme Court Review (2010–2011): 27–56. Print.
Stern, Mark Joseph. "The Supreme Court Came Alarmingly Close to Allowing Video Game Censorhip." Slate. Slate.com, 7 Jan. 2015. Web. 11 Nov. 2015. <http://www.slate.com/blogs/future‗tense/2015/01/07/elena‗kagan‗reveals‗the‗supreme‗court‗came‗close‗to‗allowing‗video‗game.html>.
Supreme Court of the United States. "08-1448 Brown v. Entertainment Merchants Association." Supreme Court of the United States. Supreme Court of the U.S., 26 April 2010. Web. 15 Nov. 2015. <http://www.supremecourt.gov/qp/08-01448qp.pdf>.