In one of the final decisions issued this term, the U.S. Supreme Court overturned California’s law banning the sale or rental of violent video games to minors.
The 7-2 Court said that video games deserve the same First Amendment protection as other formats, such as books, plays, and movies.
In 2005, California enacted a law that prohibited the sale or rental of “violent video games” to minors, requiring special packaging for such games.
A group of video game and software companies challenged the law, arguing that it violated the First Amendment.
Writing for the majority, Justice Antonin Scalia found “gore” in other art forms directed to children, using the example of Cinderella’s evil stepsisters getting their eyes pecked out by birds, the graphic nature of Dante’s Divine Comedy, and mandatory high school reading, including like Lord of the Flies and The Odyssey. Despite the allegedly more “interactive” nature of video games, the Court said that “all literature is interactive.”
Further, while the state attempted to address a legitimate and serious social problem, the Justices said the evidence that video games cause violence in children was lacking.
“The state’s evidence is not compelling,” the Court said. The evidence relied upon shows “at best some correlation between exposure to violent entertainment and miniscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.”
Because California “singled out the purveyors of video games for disfavored treatment – at least when compared to booksellers, cartoonists, and movie products” and offered “no persuasive reason why,” the law could not stand, Justice Scalia wrote.
“Even where the protection of children is the object, the constitutional limits on governmental action apply,” the Court held.
Other Justices, in a concurrence, written by Justice Samuel Alito and Chief Justice John Roberts, indicated that they are not entirely opposed to laws restricting the sale of video games to children. Emphasizing the “rapidly evolving” nature of technology, Justice Alito did not foreclose the possibility that a law providing “narrow specificity” in a similar ban would pass constitutional scrutiny.
Justice Clarence Thomas authored a dissent that focused on children’s limited First Amendment rights and the ability of parents to control access to their offspring, writing that the freedom of speech, as originally understood by the drafters of the Constitution, did “not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”
In his dissent, Justice Stephen Breyer said he would have upheld the law, as the regulation of communication addressed to children does not need to conform to the requirements of the First Amendment in the same way as those applicable to adults, and it imposed “no more than a modest restriction on expression.”
To read the Court’s decision in Brown v. Entertainment Merchants Association, click here.
Why it matters: The Association of National Advertisers filed an amicus brief opposing the California law “to respond to the growing effort of policymakers across the country to ‘childproof’ ever widening categories of speech in our society,” Dan Jaffe, executive vice president of government relations for the ANA, said in a statement. “The Supreme Court has repeatedly held that speech that is perfectly lawful for adults cannot be overly restricted under the guise of protecting children and they reaffirmed that in today’s decision.” Calling the decision a “major victory,” Jaffe added that the “First Amendment is the ultimate safety net for all marketers when any government seeks to ban or restrict advertising.”