For years, states have passed legislation attempting to restrict the sale of video games, particularly violent video games, to minors. These laws routinely have been struck down at the district or appellate level but had not reached the Supreme Court. On June 27, 2011, the Supreme Court rendered a 7-2 decision holding that California’s legislation prohibiting the sale of violent video games to minors was unconstitutional. In doing so, the Supreme Court recognized that video games are protected speech like other works of art and that California’s legislation was not narrowly tailored to meet a compelling governmental interest.

In Brown v. Entm’t Merch. Ass’n, the Supreme Court addressed the scope of First Amendment protection as it relates to expressive works offered to minors, such as violent video games. The Brown case arose in the context of California legislation that prohibited the rental or sale of violent video games to minors “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” where “[a] reasonable person, considering the game as a whole, would find [that the game] appeals to a deviant or morbid interest of minors” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Historically, violent speech has not been an unprotected category of speech, like obscenity, incitement, and fighting words. In support of the legislation, California argued that it was within the government’s power to create a new narrow classification of unprotected speech targeting children. The Court, however, was not willing to create a new category of unprotected speech, pointing to the tradition of not regulating violent speech. In support of its holding, the Court cited to examples of violence in works such as movies, television and radio shows, and even children’s books. California argued that video games differ from those other forms of expression given the interactivity of video games. The Court dismissed that argument, noting that some of the best literature is highly interactive.

The First Amendment defense has become an increasingly litigated defense in litigation involving video games and intellectual property claims, such as trademark and right of publicity claims. The recognition by the Supreme Court that video games are entitled to First Amendment protection just like other forms of entertainment indicates that the First Amendment defense will continue to play an important role in certain types of intellectual property litigation involving video games. For more information about the First Amendment defense as it applies to trademark claims, please see here.