This morning the Supreme Court of the United States issued a long-awaited decision in Brown v. EMA (copy attached hereto). The decision authored by Justice Scalia (in which Justices Kennedy, Ginsburg, Sotomayor and Kagen joined and Alito and Roberts concurred) opined on the validity of California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746-1746.5 ("Act"). The Act prohibited the sale or rental of violent video games to minors and required packaging to be labeled '"18" if the game included options for "killing, maiming, dismembering, or sexually assaulting an image of a human being" in ways that reasonably could be considered as appealing to "a deviant or morbid interest of minors" or is "patently offensive to prevailing standards in the community".
The Supreme Court strongly held that video games qualify for First Amendment protection and that the "basic principals of freedom of speech . . . do not vary" with the creation of a new and different communication medium. Specifically, the Court stated that "[l]ike the protected books, plays, and movies that preceded them, 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). That suffices to confer First Amendment Protection." The decision stated that the First Amendment protection is subject to only a few limited exceptions for historically unprotected speech, such as obscenity, incitement and fighting words and a legislature may not create new categories simply by deciding that such categories of speech do not have sufficient societal value. Moreover, the Court's decision stuck down the proffered argument that violence is a form of obscenity by holding that "[v]iolence is not part of obscenity that the Constitution permits to be regulated".
The court did not remove the possibility of any sort of video game regulation and clearly understood California's desire to protect its minor citizens. "No doubt a State possesses legitimate power to protect children from harm . . . but that does not include a free-floating power to restrict the ideas to which children may be exposed." The Court found that if California could actually demonstrate that its Act passes the strict scrutiny test (i.e. justified by a compelling governmental interest and is narrowly tailored to serve said interest) it may be able to restrict the protected speech inherent in video games. However, the Court opined that California could not meet this standard as its evidential psychological studies were flawed and its Act is "widely underinclusive" raising concerns that it is merely disfavoring a certain viewpoint rather than protecting a valid state interest.
"Here, 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." Therefore, the Court felt that by limiting its purported regulation to the video game industry while ignoring other industries that make violent content available to minors, California demonstrated a unconstitutional bias. Moreover, the court stated that the video game industry's ESRB voluntary rating system already accomplishes one of the Act's goals, that of assisting parents in restricting their children's access to violent video games eliminating the compelling need for California's Act.
While the Court's decision did not put a final nail in the coffin of any future laws seeking to regulate video game content, it did make it significantly more difficult to do so without meeting the strict scrutiny standard.