Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, June 27, 2011

Supreme Court Affirms Ninth Circuit; California Video Game Law Unconstitutional

On First Amendment grounds, the Supreme Court has struck down a California law which limits the sale of violent video games to minors. The majority found that the state had provided no compelling interest to "abridge the freedom of speech" it pursued in this statute, even though the ends it was pursuing might be commendable. In writing for the 7 justice majority, Justice Scalia pointed to a number of prior FA cases, noting that in all of them, the Court had never "specially" protected children from depictions of violence.

Justices Thomas and Breyer wrote dissents. 

Pointing to the decision in U.S. v. Stevens, Justice Scalia wrote,

As in Stevens, California has tried to make violent-speech regulation look like
obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the FirstAmendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” Miller, supra, at 24. See also Cohen v. California, 403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity. In Winters, we considered a New
York criminal statute “forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person,” 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. “[T]here can be no more precise test of written indecency or obscenity,” it said, “than the continuing andchangeable experience of the community as to what typesof books are likely to bring about the corruption of publicmorals or other analogous injury to the public order.” Id., at 514 (internal quotation marks omitted). That is of course the same expansive view of governmental power to
abridge the freedom of speech based on interest-balancing that we rejected in Stevens. Our opinion in Winters, which concluded that the New York statute failed a heightened
vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U. S., at 517–519, made clear that violence is not part of the obscenity
that the Constitution permits to be regulated. The speech reached by the statute contained “no indecency or obscenity in any sense heretofore known to the law.” Id., at 519. 

Because speech about violence is not obscene, it is of noconsequence that California’s statute mimics the New York statute regulating obscenity-for-minors that weupheld in Ginsberg v. New York, 390 U. S. 629 (1968).That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.2 We held that the legislature could“adjus[t] the definition of obscenity ‘to social realities by
permitting the appeal of this type of material to be assessed in terms of the sexual interests . . .’ of . . . minors. ” Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502,
509 (1966)). And because “obscenity is not protected expression,” the New York statute could be sustained so long as the legislature’s judgment that the proscribed
materials were harmful to children “was not irrational.” 390 U. S., at 641.

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed foradults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly
new category of content-based regulation that is permissible only for speech directed at children.That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendmentprotection, and only in relatively narrow and well-definedcircumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville, 422 U. S. 205, 212–213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640–641; Prince v.
Massachusetts, 321 U. S. 158, 165 (1944), but that doesnot include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither
obscene as to youths nor subject to some other legitimate
proscription cannot be suppressed solely to protect the
young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik, supra, at 213–214.3

California’s argument would fare better if there were alongstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is
none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes
pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and
whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and
the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord
of the Flies 208–209 (1997 ed.).

This is not to say that minors’ consumption of violent entertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. See Brief for Cato Institute as Amicus Curiae 6–7. When motion pictures came along, they became the villains instead. “The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close. . . . They say that the moving picture machine . . . tends even more than did the dime novel to turn the
thoughts of the easily influenced to paths which sometimes lead to prison.” Moving Pictures as Helps to Crime, N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Institute, at 8. For a time, our Court did permit broad censorship of movies because of their capacity to be “used forevil,” see Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U. S. 230, 242 (1915), but we eventually reversed course, Joseph Burstyn, Inc., 343 U. S., at 502; see also
Erznoznik, supra, at 212–214 (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Brief for
Cato Institute, at 10–11. Many in the late 1940’s andearly 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading
to a rising juvenile crime rate. See Note, Regulation ofComic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts to convince Congress to restrict comic books failed. Brief
for Comic Book Legal Defense Fund as Amicus Curiae 11–15.5 And, of course, after comic books came television and music lyrics.

California claims that video games present specialproblems because they are “interactive,” in that the playerparticipates in the violent action on screen and determines
its outcome. The latter feature is nothing new: Sinceat least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-ownadventure stories have been able to make decisions that
determine the plot by following instructions about which
page to turn to. Cf. Interactive Digital Software Assn. v.
St. Louis County, 329 F. 3d 954, 957–958 (CA8 2003). As
for the argument that video games enable participation inthe violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all

literature is interactive. “[T]he better it is, the moreinteractive. Literature when it is successful draws the
reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, toexperience their joys and sufferings as the reader’s own.”
American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001) (striking down a similar restriction on violent video games).

JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14.
“Victims are dismembered, decapitated, disemboweled, set
on fire, and chopped into little pieces. . . . Blood gushes,
splatters, and pools.” Ibid. JUSTICE ALITO recounts all
these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at
14–15, of those video games he has discovered that have a
racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase
the “aggressiveness” that California wishes to suppress?
Who knows? But it does arouse the reader’s ire, and the
reader’s desire to put an end to this horrible message.
Thus, ironically, JUSTICE ALITO’s argument highlights the
precise danger posed by the California Act: that the ideas
expressed by speech—whether it be violence, or gore, or
racism—and not its objective effects, may be the real
reason for governmental proscription.

Because the Act imposes a restriction on the content ofprotected speech, it 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. R. A. V., 505 U. S., at 395. The State must specifically identify an “actual problem” in need of solving, Playboy, 529 U. S., at 822–823, and the curtailment of free speech must be actually necessary to the solution, see R. A. V., supra, at 395. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” Playboy, supra, at 818.

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather,
relying upon our decision in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), the State claims that it need not produce such proof because the legislature canmake a predictive judgment that such a link exists, basedon competing psychological studies. But reliance on Turner Broadcasting is misplaced. That decision applied
intermediate scrutiny to a content-neutral regulation. Id., at 661–662. California’s burden is much higher, and because it bears the risk of uncertainty, see Playboy,
supra, at 816–817, ambiguous proof will not suffice.

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws
in methodology.” Video Software Dealers Assn. 556 F. 3d,
at 964. They show at best some correlation between exposure to violent entertainment and minuscule 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.

Even taking for granted Dr. Anderson’s conclusions thatviolent video games produce some effect on children’s feelings of aggression, those effects are both small and
indistinguishable from effects produced by other media.In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent
video games are “about the same” as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when
children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all
ages), id., at 1270, or even when they “vie[w] a picture of a
gun,” id., at 1315–1316.

Of course, California has (wisely) declined to restrictSaturday morning cartoons, the sale of games rated foryoung children, or the distribution of pictures of guns.
The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, ratherthan disfavoring a particular speaker or viewpoint. See
City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida
Star v. B. J. F., 491 U. S. 524, 540 (1989). 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.

The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are
a problem, and perhaps none of us would allow our own children to play
them. But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)),
or the problem of encouraging disrespect for the Nation’s flag (Texas v.
Johnson, 491 U. S. 397 (1989)).

JUSTICE BREYER would hold that California has satisfied strict
scrutiny based upon his own research into the issue of the harmfulness
of violent video games. See post, at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of thisresearch is outside the record—and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot
say whether the studies on his side are right or wrong. Post, at 15.
Similarly, JUSTICE ALITO says he is not “sure” whether there are any
constitutionally dispositive differences between video games and othermedia. Post, at 2. If that is so, then strict scrutiny plainly has not been


And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own
have parents who care whether they purchase violent
video games. While some of the legislation’s effect may
indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want.
This is not the narrow tailoring to “assisting parents” that JUSTICE BREYER concludes that the remaining gap is compelling because, according to the FTC’s report, some “20% of those under 17 arestill able to buy M-rated games.” Post, at 18 (citing FTC Report 28).
But some gap in compliance is unavoidable. The sale of alcohol to
minors, for example, has long been illegal, but a 2005 study suggests
that about 18% of retailers still sell alcohol to those under the drinking
age. Brief for State of Rhode Island et al. as Amici Curiae 18. Even if
the sale of violent video games to minors could be deterred further byincreasing regulation, the government does not have a compelling
interest in each marginal percentage point by which its goals are advanced.


California’s effort to regulate violent video games is the
latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward tosupport the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns thatunderlie the attempt to regulate them—concerns that may
and doubtless do prompt a good deal of parental oversight.
We have no business passing judgment on the view of theCalifornia Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the youngor harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention andpunishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571–
572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree ofnecessity we have described as a compelling state interest
(it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.
California’s legislation straddles the fence between (1)
addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously
underinclusive nor seriously overinclusive. See Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546
(1993). As a means of protecting children from portrayals
of violence, the legislation is seriously underinclusive, not
only because it excludes portrayals other than video
games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

We affirm the judgment below.

The case is Brown v. Entertainment Merchants Association. Footnotes omitted.

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