Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), is a landmark decision of the US Supreme Court that struck down a 2005 California law banning the sale of certain violent video games to children without parental supervision. In a 7–2 decision, the Court affirmed the lower court decisions and nullified the law, ruling that video games were protected speech under the First Amendment as other forms of media.
The ruling was seen as a significant victory for the video game industry. Several of the Court's justices suggested that the issue might need to be re-examined in the future, considering the changing nature of video games and their continuously developing technology.
Background
Many video games, as early as 1976's Death Race, incorporate some aspect of violence into the gameplay mechanic, such as killing an enemy with a weapon, using explosives to destroy a structure, or engaging in dangerous vehicle races. With modern technology, representations of such violence have become more realistic. This has led to concerns that minors who play such video games will be influenced by the violence, altering their real-life behavior. Academic studies have attempted to find a connection between violent video games and the rate of violence and crimes from those that play them; some have stated a connection exists, while others find no link between the matters. Incidents such as the Columbine High School massacre in 1999 have heightened concerns of a potential connection between video games and violent actions. Accordingly, many concerned groups including politicians and parents have sought to enact regulatory controls of video games to prevent their sales to youth. Prior and during the Brown v. EMA case, parties like the Entertainment Software Association (ESA) sought to overturn similar state laws that placed limits on the sales of violent video games to minors in Michigan and Illinois. The ESA won these cases, with the laws being found unconstitutional and overly restrictive of protected speech. These states did not further challenge the court rulings. The ESA similarly defeated a Louisiana bill in the 2006 Entertainment Software Association v. Foti case that would have attempted to ban sales of violent video games to minors.
To counteract these increasing complaints and attempts at legislation, the video game industry in the United States created the Entertainment Software Rating Board (ESRB) in 1994. This was prompted by a 1993 congressional hearing over the violence in the video game Mortal Kombat and lack of consistent content ratings between publishers, with Congress threatening to pass legislation that would mandate a ratings system if the industry did not take its own steps. The industry reacted by forming the Interactive Digital Software Association, which would become the ESA, and establishing the ESRB. The ESRB, like the Motion Picture Association of America's rating system, is a voluntary and self-regulated body that examines the content of video games as provided by the publisher before distribution, and given a rating describing the content within, generally classified from being all ages-appropriate to adult audiences only. Video game distributors are similarly bound by voluntary compliance to check the age of the purchaser against the rating of the game to prevent the sale of mature titles to younger players. Most stores prevent the sale of unrated games, so virtually every video game sold at retail in the United States is rated by the ESRB.
Attempts have been made to mandate the ratings system; the Family Entertainment Protection Act, a 2005 bill introduced into the U.S. Congress by Senators Hillary Clinton, Joseph Lieberman, and Evan Bayh, would have made ESRB participation mandatory with oversight by the Federal Trade Commission, and introduced fines for selling Mature or Adult-Only content to minors. The bill, however, did not clear the Senate. Though the ESRB met criticism in 2000–2005 for the ease of access of mature-rated games to minors, the Board has improved its efforts to enforce the ratings system at retailers. A 2011 report issued by the Federal Trade Commission found that the voluntary controls by the ESRB had the highest success rate of any media industry, preventing sales of mature titles to minors 87% of the time. Similar content rating systems exist in other countries, including Europe's Pan European Game Information (PEGI) system, the Australian Classification Board, and Japan's Computer Entertainment Rating Organization.
California law
In 2005, the California State Legislature passed AB 1179, sponsored by then-California State Senator Leland Yee, which banned the sale of violent video games to anyone under age 18 and required clear labeling beyond the existing ESRB rating system. The law would have a maximum $1000 fine for each infraction. The definition of "violent video game" used a variation of the Miller test, a three-pronged test used previously by the United States Supreme Court to define when obscene speech is not protected under the First Amendment. The bill was signed into law by Governor Arnold Schwarzenegger in October 2005. The law would have gone into effect in January 2006.
The law was a second attempt by Yee to enact restrictions for video game sales to minors. Yee's background as a child psychologist led him to assert there was a connection between video games and violence and believed that the government had strong interest in restricting video game sales to minors as was already done for pornographic works. In 2004, Yee had drafted a law that would have required mature-rated video games to be stocked separately from other titles. Though the bill ultimately passed as CA Law AB 1793, the bill's language was diluted at its passage, only requiring stores to display the ESRB ratings system and provide information to parents about it.
Legal challenges
The District Court opinion Before the California bill was signed into law, the ESA and the Video Software Dealers Association (VSDA), now known as the Entertainment Merchants Association (EMA), were preparing a lawsuit to overturn the law, fearing that the "violent video game" definition would affect many titles that the ESRB has otherwise labeled appropriate for younger players, and threaten to harm the video game industry. The VSDA filed suit in the United States District Court for the Northern District of California and was later joined by the ESA. The two groups succeeded in obtaining a preliminary injunction in December 2005 to block enforcement of the law during the case; U.S. District Judge Ronald M. Whyte cited in his preliminary decision: "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children." In August 2007, Whyte ultimately ruled for the plaintiffs, holding that the law violated the First Amendment, and that there was an insufficient showing of proof that either video games differed from other media or that there was established causality between violent video games and violent behavior.
The Ninth Circuit appeal California Governor Arnold Schwarzenegger appealed the ruling in September 2007, stating that he would "vigorously defend this law" and that he and the people of California have "a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions". The Ninth Circuit Court of Appeals affirmed Whyte's decision in 2009.
The Ninth Circuit considered the constitutionality of the law; given the timeframe of the law's passing relative to litigation, it was referred to as the "Act" in the court's opinion. The Ninth Circuit affirmed the District Court's Summary Judgment for the VSDA by holding: The Act is a presumptively invalid content-based restriction on speech, so it is subject to strict scrutiny and not the "variable obscenity" standard from Ginsberg v. New York.. The Act violates rights protected by the First Amendment because the state has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exists a less-restrictive means that would further the State's expressed interest. The Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information, but compels the carrying of the State's controversial opinion.
The court first addressed the VSDA's argument that the entire Act should be invalidated based on the defendant's concession on appeal that the definition of "violent video game" in the Act is unconstitutionally broad. However, the statute had a severability clause,California Civil Code § 1746.5. so the court went through the severability test set forth in Hotel Employees & Rest. Employees Int'l Union v. Davis. The court held that the definition for "violent video game" is grammatically and functionally separable because, as an alternative definition of "violent video game", it can be removed from the Act without affecting the wording or function of the Act's other provisions. Further, the definitions are volitionally separable because those sections were not of critical importance to the passage of the Act and the legislative body would have adopted the Act had it foreseen the partial invalidation of the statute. These definition sections were only included to avoid the possibility that a court would rule the terms unconstitutionally vague; the court found that the legislature would still have enacted the statute without this definition section.
The court next went on to determine what level of scrutiny should be applied in reviewing the Act's prohibitions. The defendants insisted that the "variable obscenity" standard from Ginsberg v. New York should be used. However, the court held that the "variable obscenity" standard does not apply to violence. The Court in Ginsberg was careful to place substantive limits on its holding, and concern in Ginsberg regarded only "sex material", not violence. The court declined to extend the application of the "variable obscenity" standard to violence, so strict scrutiny was applied instead.
In applying the strict scrutiny standard, the court recognized that "content-based regulations are presumptively invalid",. and to survive invalidation, the Act had to fulfill two qualifications: Restrictions "must be narrowly tailored to promote a compelling Government interest". "If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative.".
The court invalidated the statute on both accounts. First, the court said that in considering its decision, the court limited the purpose of the Act to the actual harm to the brain of a child playing a violent video game. As a result, the state was required to show that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way".. Here, the defendants failed to do so because all of the reports they relied on in making these claims were admittedly flawed. While the state is allowed to protect minors from actual psychological or neurological harm, it is not permitted to control minors' thoughts. Second, the court held that the defendants did not demonstrate the absence of less restrictive alternative means. In fact, video games already comply with a voluntary rating system that rates video games based on their topics and age appropriateness. This is a clear example of a less restrictive means. The court noted that the least restrictive means is not the same as the most effective means.