On June 27, 2011, the Supreme Court invalidated a California statute prohibiting the sale or rental of "violent" video games to minors.  In Brown v. Entertainment Merchants Association, No. 08-1448, the Court held that restrictions on video games are subject to strict scrutiny under the First Amendment, and that the California statute failed strict scrutiny. 

In an opinion by Justice Scalia, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, the Supreme Court held for the first time that video games are constitutionally protected speech.  "Like the protected books, plays, and movies that preceded them," the Court explained, "video games communicate ideas--and even social messages--through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)."  While video games are "interactive," that "feature is nothing new"--indeed, "young readers of choose-your-own-adventure stories" have long been able to "make decisions that determine the plot by following instructions about which page to turn to," and video games are different only in "degree" rather than "kind."

California sought to defend the statute by arguing that "violent" video games are "harmful to children," and that it should therefore be permitted to restrict minors' access to such games even if they would be constitutionally protected as to adults.  The Court, however, dismissed this argument as an attempt "to create a wholly new category of content-based regulation that is permissible only for speech directed at children."  "[M]inors are entitled to a significant measure of First Amendment protection," the Court noted, "and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."  Violence is not one of those narrow areas because there is no "longstanding tradition in this country of specially restricting children's access to depictions of violence."

The Court acknowledged that, in its view, "[r]eading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat."  "But these cultural and intellectual differences," the Court continued, "are not constitutional ones."  Instead, "[c]rudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny."

Because video games are protected speech, and because the California statute imposed a restriction on video games based on their content, the Supreme Court noted that the statute is "invalid unless California can demonstrate that it passes strict scrutiny--that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest."  The California statute failed this exacting inquiry because the evidence that video games could lead to violent behavior in children is "not compelling"--"[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology."

In addition, the statute is "wildly underinclusive when judged against its asserted justification" because "California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns."  In the Court's view, this underinclusiveness was "alone enough to defeat" the statute:  "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."  

Finally, the Court rejected California's argument that the statute could be "justified in aid of parental authority."  The Court expressed its "doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority."  But in any event, the Court emphasized, "California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so."  That is so because "[t]he video-game industry has in place a voluntary rating system designed to inform consumers about the content of games," which "does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home."  "Filling the remaining modest gap in concerned-parents' control," the Court concluded, "can hardly be a compelling state interest."

Justice Alito, joined by The Chief Justice, concurred in the judgment on the ground that, in his view, the California statute is unconstitutionally vague.  Justices Thomas and Breyer concluded, in separate dissents, that the statute is constitutional.

The Supreme Court's decision is an important victory for video game developers, publishers, and retailers.  By clarifying that video games are constitutionally protected speech that cannot be "singled out for disfavored treatment" without raising serious--and, in this case, decisive--First Amendment concerns, the Court has provided much-needed guidance to lower courts confronting challenges to similar statutes that place burdensome restrictions on the video game industry.  And by emphasizing that the industry's voluntary rating system--the ESRB ratings--is sufficient to aid parents in deciding which games are suitable for their children, the Court has confirmed that legislative regulation is unnecessary to prevent minors from accessing video games over their parents' objections. 

Gibson Dunn filed an amicus brief challenging the California statute on behalf of Microsoft Corporation.