As seen on Law360.

In a case that produced a majority opinion, a concurring opinion and two separate dissenting opinions, Brown v. Entertainment Merchants Association, 564 U.S. ___ (2011) (slip op.), found the justices, as well as the parties, in agreement on one important issue: Video games, as a distinctive medium for the expression of ideas, fall within the ambit of the First Amendment “freedom of speech” clause.

However, from that point the justices staked out distinct positions that reveal a more divided U.S. Supreme Court than the 7-2 outcome would, at first glance, suggest. As a result, the takeaway for video game manufacturers, and the entertainment industry at large, may necessitate more caution than the favorable decision seems to require.

Background: Permissible Restrictions on Freedom of Speech

Historically, U.S. Supreme Court jurisprudence has recognized three categorical exceptions to the First Amendment’s prohibition on restricting speech: obscenity, incitement and fighting words.

The test for obscenity was presented in its current form by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). The obscenity statute upheld in Miller contained a threshold requirement that the material be “hard core” and three additional requirements that must be met to avoid the First Amendment’s protective umbrella.

These requirements include a finding that the material “appeals to the prurient interest” when applied to “contemporary community standards,” depicts or describes sexual conduct “in a patently offensive way,” and lacks “serious literary, artistic, political, or scientific value.”

The test for incitement has been elaborated from the court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), to require an unprotected expression be made with an intent to incite temporally imminent lawless action and a likelihood of inciting such behavior. While it did not set forth a specific test for “fighting words,” the court in Chaplinksy v. New Hampshire, 315 U.S. 568 (1942), described these unprotected expressions as those likely to provoke an average person to retaliate and breach the peace.

In a recent decision, United States v. Stevens, 559 U.S. ___ (2010) (slip op.), the Supreme Court limited unprotected speech to the traditionally restricted categories (i.e., obsecenity, incitement and fighting words). According to Stevens, only these three categories, or those subject to a similar “tradition of proscription” in American history but not yet recognized as unprotected by the court,1 may be the subject of content-based restriction.

Without a categorical exception to the freedom of speech clause, a restriction on expression must be subjected to strict scrutiny. Succeeding on such an analysis requires findings that the law in question is “narrowly tailored” to serve a “compelling interest” and is necessitated by the lack of an equally effective but “less restrictive” alternative.

Brown v. EMA Majority: Freedom of Expression

Relying on the Stevens precedent for its holding, Justice Antonin Scalia’s majority opinion in Brown v. EMA determined violent depictions in video games to be protected speech because violence neither fits one of the traditionally unprotected categories nor represents an unrecognized category of historically restricted expression. As such, a strict scrutiny analysis was the appropriate test for assessing the constitutionality of California’s prohibition on the sale of violent video games to minors.

The EMA court invalidated California’s restrictive legislation, attacking the statute on multiple strict scrutiny grounds. Questioning the existence of a compelling government interest, the majority cites the deficiencies and conflicts in studies attempting to prove harmful effects of violent video games on children. In this regard, the court emphasizes the distinction between correlation and causation.

Even assuming depictions of violence cause harmful effects (e.g., increased aggression) in minors, the majority suggests that video games are responsible for only a small portion of the violence to which children are exposed in the media today. Additionally, the court points out that the law only restricts the buying power of minors and not their ability to possess and play these “harmful” games. As such, a law targeting only the sale of video games in order to further the interest of protecting children is under-inclusive.

On the flip side, if the “compelling interest” were to aid parents in restricting their children’s access to violent video games, the EMA court asserts that the California law is over-inclusive. Concluding that all children affected by this prohibition do not have parents who are concerned with their purchase of violent video games, the majority suggests that the California legislature is overreaching rather than narrowing as required by strict scrutiny.

Even citing the video game industry’s self-imposed regulation (i.e., Entertainment Software Rating Board age-specific rating system) as an alternative to the legislation, Scalia’s majority seems to find a failure to meet the strict scrutiny standard on all accounts. As a result, the EMA court ultimately declares the California law prohibiting the sale of violent video games to minors to be an unconstitutional encroachment on the freedom of expression granted by the First Amendment.2

A Concurrence (in Judgment Only) and Two Dissents: Protection of Children

While the Brown v. EMA decision came down 7-2, Scalia’s majority was only joined by four other Justices (Anthony Kennedy, Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan). Justice Samuel Alito and Chief Justice John Roberts rounded out the seven in favor of striking down the California statute in question.

However, utilizing a mixture of constitutional avoidance and legislative deference, Alito and Roberts concurred in judgment while still disagreeing with the court’s analysis of the First Amendment issue. As such it seems, if not for their void for vagueness determination, Alito and Roberts may just as easily have joined the dissent.

Detailing the technological innovations of the video game industry and the level of sophistication expected in the coming years, the concurrence suggests that depictions of violence in video games may soon be like nothing our society has ever seen. Because of this never-before-seen interactivity and realism, Alito questions the majority’s analogies to violence in literature throughout history and violence on television today.

In the opinion of the two concurring justices, the legislature should be left to determine the existence of a developing social problem and take steps to minimize the problem’s adverse effects. According to the concurrence, this is especially true in today’s world where parents are not able to monitor every move their children make.

The dissenting opinions of Clarence Thomas and Stephen Breyer take divergent approaches to arrive at the determination that the California statute should be upheld as a constitutional limitation on the First Amendment’s freedom of expression. In so doing, they rely (at least in part) and expand upon the child protective theme underlying the concurrence’s disagreement with the majority.

Exploiting the gap left open by the Stevens precedent and reinforced by the Brown v. EMA majority, Justice Thomas’ dissent explores the proposition that speech directed to minors is a new category of permissible content-based restriction, which has been historically unprotected even if unrecognized as such until this point.

According to his dissenting opinion (which relies on philosophical, religious, and social beliefs of the U.S. Constitution’s drafters that do not need to be analyzed here), “freedom of speech” does not and has never included a right to speak to minors without first obtaining the permission of the parents. Although Thomas’ position is unshared by any other justice, it is telling in terms of his viewpoint on the tension between freedom of expression and protection of children.

Adopting a less extreme approach than that of Thomas, Justice Breyer’s dissent concedes that depictions of violence and video games in general are categorically protected forms of expression and, as a result, the California statute in question must face strict scrutiny. Where Breyer differs from the majority is on the outcome of the strict scrutiny test.

Finding that the statute is directed toward two compelling interests (state interest in supplementing parental authority and state’s independent interest in the well-being of its youth), Breyer’s dissent directs the analysis to a balancing test weighing the speech-related harm of the statute against the protective benefits of the statute. In this way, Breyer places the tension between freedom of expression and protection of children at the forefront of the constitutionality discussion.

Citing the lack of effective alternatives, the modesty of the restriction (i.e., parents can still buy the games if they want their children to have them), and studies pointing to increased aggression in children, Breyer’s dissent concludes that the California statute passes strict scrutiny and should be upheld.

In so doing, Breyer relies heavily on the precedent of Ginsberg v. New York, 390 U.S. 629 (1968), in which the Supreme Court upheld a statute forbidding the sale of depictions of nudity to minors. While the Brown v. EMA majority distinguished Ginsberg as an extension of an already-recognized category of unprotected speech (i.e., obscenity), Breyer’s dissent compared Ginsberg in terms of the balancing test between speech-related harm and statute-related benefits:

"But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?"

Although this is an admittedly extreme example, Breyer’s dissent seems to echo the two concurring justices for the proposition that the video game industry may approach a level of sophistication at which interactivity with violence is too much for children to handle.

As such, in the debate between freedom of expression and protection of the well-being of America’s youth the justices seem to come down 5-4 (majority vs. concurrence/dissents). While this is still a win for the video game industry, and an important one at that, the victory may not be as convincing as the 7-2 outcome on its face suggests.

What Does Brown v. EMA Mean for the Video Game Industry Going Forward?

While the four separate opinions issued by the justices display a great deal of disunity within their ranks, the Supreme Court in Brown v. EMA seems to agree that video games are a form of expression within the ambit of the First Amendment and that depictions of violence (whether in video games or otherwise) are categorically protected by the “freedom of speech” clause.

It is not the intention of this article to understate the importance and favorability of this holding for the video game industry. After this decision, video game manufacturers can be assured that depictions of violence will not be pigeonholed into one of the three unprotected categories of expression (obscenity, incitement, fighting words) and do not represent a “traditionally restricted but not yet recognized”3 category.

As a result of EMA, it is also safe to assume that expression directed at children is categorically protected, even if Justice Thomas would disagree. These assurances should encourage a collective sigh of relief from an industry that has increasingly been under the spotlight in recent years.

However, categorical protection under the First Amendment is not the end of the inquiry. The restrictive legislation or regulation can still pass the court’s strict scrutiny analysis. It is on this question of violent video game restrictions and strict scrutiny where a detailed assessment of Brown v. EMA must take place.

The majority, representing five justices, found that the California law prohibiting the sale of violent video games to minors failed the test for strict scrutiny because of the conflicting studies regarding harmful effects, the over- and under-inclusiveness of the statute and the less-restrictive alternative offered by the industry’s voluntary rating system.

In addition to the two dissents, the concurrence did not join on the strict scrutiny portion of the majority’s holding and even suggested the opposite finding in the case of a future (less vague) statute if the interactivity and violence continue on their current path.

With this in mind, on the question of whether some level of violence will be enough to allow a restriction protecting children to pass strict scrutiny, the Supreme Court is more evenly split than the 7-2 outcome seems to indicate. Again, it should not be understated that on this issue the court still comes down 5-4 in favor of freedom of expression within the video game industry.

Thus, as of now, Brown v. EMA protects the makers of video games and allows the expression of violence in whatever form it may take. However, Alito’s concurrence enumerates predicted innovations within the industry, allowing an increased level of interactivity and realism with the depictions of violence, that may force the court to revisit the strict scrutiny analysis in the future.

If these innovations are incorporated into video games and psychological studies on children increasingly point toward harmful effects of depictions of violence, the court may develop a different view of what constitutes a compelling government interest.

Brown v. EMA is a success for the video game industry, but the disunity of the justices and the concerns anticipated in the concurring and dissenting opinions should at least be enough to warn video game manufacturers not to completely throw caution to the wind.