Thoughts on SCOTUS Video Games Decision in Brown v. EMA

by on June 27, 2011 · 10 comments

The Supreme Court wasn’t playing games with the First Amendment today. With its 7-2 decision in Brown v. EMA, the Court has protected video game creators and players from unconstitutional restrictions on what we can produce and play.

Today’s decision ensures that video games have First Amendment protection on par with books, film, music and other forms of entertainment and will help block other regulatory efforts that are justified by blindly alluding to the rationale that “it’s for the children.” The decision fits nicely alongside an impressive and growing string of recent First Amendment cases from the Court that significantly raise the bar against legislative efforts to regulate freedom of speech and expression.

Quick background: In May 2010, the Supreme Court announced that it would review a California law regulating the sale of violently-themed video games to minors. The case was Schwarzenegger v. Entertainment Merchants Association, but the name of the case changed to after Jerry Brown became governor of California.  The Ninth Circuit Court of Appeals had struck down a California law which prohibited the sale or rental of “violent video games” to minors, but California appealed and the SCOTUS took up the issue.  [Note: When we were still with the Progress & Freedom Foundation, Berin Szoka and I filed a big amicus brief with the Court in the case along with some folks at the Electronic Frontier Foundation.]  By a 7-2 vote, the Supreme Court backed the Ninth Circuit and overturned the California law. Justice Scalia wrote for the majority. Justices Thomas and Breyer dissented.

The crucial holdings in the decision are as follows:

  1. Video games are protected speech deserving strict First Amendment scrutiny. The Court held: “Video games qualify for First Amendment protection.  Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.  And ‘the basic principles of freedom of speech… do not vary’ with a new and different communication medium.”
  2. Depictions of violence in video games cannot be treated as obscenity and regulated as such. The Court concluded flatly: “speech about violence is not obscene” and held that “a legislature cannot  create new categories of unprotected speech simply by weighing the value of a particular category against its social  costs and then punishing it if it fails the test.” It continues on: “the State of California 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.  This country has no tradition of specially restricting children’s access  to depictions  of violence.”
  3. The social science literature on the impact of violent games is inconclusive. The Court found that: “Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act  aggressively.  Any demonstrated effects are both small and indistinguishable from effects produced by other media.”
  4. Concerns about children cannot be used as an excuse for sweeping content regulation (especially when less-restrictive means exist of dealing with access to objectionable content.) Government cannot excuse censorship by pointing to fears about children’s access to violent depictions of media. The Court noted that, “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,” but that, “even where the protection of children is the object, the  constitutional limits on governmental action apply.” Violently-themed media is as old as literature itself, the Court noted. As has been the case with previous forms of violent content, parental responsibility is the better way to regulate access to potentially objectionable media. And the Court noted that tools and ratings exist to help parents do so.

This is the proper approach for a society that cherishes free speech, freedom of expression, and personal responsiblity. The Court did a great thing here today. Honestly, I was expecting a loss and had a long essay ready to go that reflected my disappointment.  Never have I been so pleased to tear up something I had spent so much time on!

A great day for the First Amendment.

P.S. As if often the case, best line in the decision came in a footnote: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are  not  constitutional ones.  Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less  forms of speech than The Divine Comedy,” Justice Scalia wrote.

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Additional TLF Reading on Video Games:

  • http://www.facebook.com/tommy.rousse Tommy Rousse

    Thanks for the great coverage.u00a0 I actually tweeted the same Dante line, but I thought there were some other gems too, although I particularly relished another judicial lambasting of Dr. Craig Anderson.u00a0 I wrote a thesis on the case law and context of this case so I’m definitely thrilled by the decision today… but at the same time, I don’t know if this is all that different from Burstyn v. Wilson.u00a0 Sure, electronic games are now widely regarded as protected speech, but what about thirty years ago?u00a0 They’re a mainstream medium now– isn’t it a failure of the anti-majoritarian role of the First Amendment to only accord protection once the worst excesses of cultural prejudice against new media have worn off?u00a0 It’s a happy day, but thirty years too late, and until the Supreme Court has a more workable definition of speech, it’s no guarantee that future media won’t be censored the same way.u00a0 For the full rundown of my argument, my thesis is available free on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868759

  • http://www.facebook.com/tommy.rousse Tommy Rousse

    Thanks for the great coverage.u00a0 I actually tweeted the same Dante line, but I thought there were some other gems too, although I particularly relished another judicial lambasting of Dr. Craig Anderson.u00a0 I wrote a thesis on the case law and context of this case so I’m definitely thrilled by the decision today… but at the same time, I don’t know if this is all that different from Burstyn v. Wilson.u00a0 Sure, electronic games are now widely regarded as protected speech, but what about thirty years ago?u00a0 They’re a mainstream medium now– isn’t it a failure of the anti-majoritarian role of the First Amendment to only accord protection once the worst excesses of cultural prejudice against new media have worn off?u00a0 It’s a happy day, but thirty years too late, and until the Supreme Court has a more workable definition of speech, it’s no guarantee that future media won’t be censored the same way.u00a0 For the full rundown of my argument, my thesis is available free on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868759

  • http://www.facebook.com/tommy.rousse Tommy Rousse

    Thanks for the great coverage.u00a0 I actually tweeted the same Dante line, but I thought there were some other gems too, although I particularly relished another judicial lambasting of Dr. Craig Anderson.u00a0 I wrote a thesis on the case law and context of this case so I’m definitely thrilled by the decision today… but at the same time, I don’t know if this is all that different from Burstyn v. Wilson.u00a0 Sure, electronic games are now widely regarded as protected speech, but what about thirty years ago?u00a0 They’re a mainstream medium now– isn’t it a failure of the anti-majoritarian role of the First Amendment to only accord protection once the worst excesses of cultural prejudice against new media have worn off?u00a0 It’s a happy day, but thirty years too late, and until the Supreme Court has a more workable definition of speech, it’s no guarantee that future media won’t be censored the same way.u00a0 For the full rundown of my argument, my thesis is available free on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868759

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  • http://www.techliberation.com Adam Thierer

    Tommy… Thanks for bringing your excellent paper to my attention.u00a0 Great stuff!u00a0 I tweeted about it and hope to draw some attention to it. nnI hope you keep up your interest in this topic.

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