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The Supreme Court Upholds Video Games as Protected Speech in Brown v. EMA

The Supreme Court handed down an opinion for Brown v. EMA (formerly Schwarzenegger v. EMA) on June 27, 2011. In a 7-2 decision, the Court affirmed the Ninth Circuit’s holding and struck down the California law that would restrict the sale of violent video games to minors.
Justice Scalia, writing for the majority, began by explaining that video games — like books, movies, or other forms of entertainment — communicate ideas, and therefore qualify for First Amendment protection. He disagreed with California’s assertion that violent video games, like obscenity, should not be protected by the First Amendment when directed towards children, calling the argument “unprecedented and mistaken.” Scalia then discussed several children’s stories and high school reading list favorites that include violent or gruesome scenes, from Hansel and Gretel to Dante’s Inferno, to make his point that our country has no tradition of restricting depictions of violence aimed toward children. He concludes by noting that California has not provided convincing evidence that violent games have a negative effect on children, and therefore their argument fails the strict scrutiny test. Because the law restricts too much speech and does not serve a narrow, compelling state interest, it must be struck down.
Justice Alito, joined by Chief Justice Roberts, wrote a concurring opinion in which he agreed that the California law was unconstitutional, calling it “impermissibly vague,” but cautioned the majority against hastily comparing new technology like video games to more familiar forms of expression like books and movies. Alito believes that the interactive nature of the games, as well as evolving technology that makes the gaming experience exceedingly realistic, should distinguish video games from other forms of media.
Justices Thomas and Breyer filed separate dissenting opinions for this case. Thomas disagrees with the majority based on historical evidence that the drafters of the First Amendment would not have intended for absolute free speech rights to extend to children. Breyer would uphold the law as well, writing that California has the right to restrict minors from buying violent games and that, based on the evidence presented, they have a legitimate reason for doing so. In the spirit of new technology, Breyer became the first Supreme Court Justice to cite a YouTube video in his opinion.