Brown v. EMA: SCOTUS Vindicates First Amendment for All Media, Empowerment & Opt-Out

by on June 27, 2011 · 7 comments

Adam Thierer has already provided an excellent overview of the Supreme Court’s decision in Brown v. Entertainment Merchants Association, striking down a California law requiring age verification and parental consent for the purchase of “violent” videogames by minors. It’s worth calling attention to two key aspects of the decision.

First, the Supreme Court has clearly affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. The Court has, in the past, often accorded lesser treatment to new media, as Cato’s excellent amicus brief explains [pp 3-15]. This approach, if applied consistently by the Court in the future, will ensure that free speech continues to be protected even as technology evolves in ways scarcely imaginable today.

Second, the Court correctly rejected California’s attempt to justify governmental paternalism as a supplement for parental responsibility [Brown at 15-17]. The existing content rating system and parental controls in videogame consoles already empower parents to make decisions about which games are appropriate for their children and their values. As in the Sorrell decision handed down last week, the Court has rejected what amounts to an opt-in mandate—this time, in favor of letting parents “opt-out” of letting their kids play certain games or rating levels rather than requiring that they “opt-in” to each purchase. This is the recurring debate about media consumption—from concerns over violent or offensive speech to those surrounding privacy. And once again, speech regulation must yield to the less-restrictive alternatives of empowerment and education.

Both these points were at the heart of the amicus brief I filed with the Supreme Court in this case last fall (press release), along with Adam (my former Progress & Freedom Foundation colleague) and Electronic Frontier Foundation Staff Attorney Lee Tien and Legal Director Cindy Cohn. Here’s the summary of our argument in that brief, which provides as concise an overview of our reasoning as we could manage, broken down into separate bullets with quotations referencing the Court’s decision on that point. As you’ll see, the Court’s decision reflected all our arguments except for one, which the Court’s decision did not reach.

  • Our Brief, Point 1: This Court has long held that content-based regulation of speech must yield to less restrictive means that do not affect First Amendment interests of speakers and willing listeners. Here, amici explain how a highly descriptive content rating system, an extensive array of parental empowerment tools, numerous household media control methods, and enforcement of existing consumer deception laws together constitute a less restrictive alternative to California’s law. Indeed, survey research conducted by the Federal Trade Commission shows that the videogame industry’s official rating and labeling system is not only widely recognized and used by parents but is also well enforced. Whatever the state’s interest, parents today already have the capacity to choose and control their children’s videogame consumption based on their own household standards. Government can help build awareness of parental control tools and methods, and punish deception, but there is no Constitutional justification for restricting this new and evolving form of speech.
  • The Court: California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games … [noting the FTC report in particular]. This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest [Brown at 15-16].
  • Our Brief, Point 2a. Videogames are speech fully protected by the First Amendment, and both the “violence” and “interactivity” feared by California are integral, expressive aspects of books, plays and movies, as well as videogames.
  • The Court: [W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears. [2-3, internal quotation omitted]

While Justices Kennedy, Ginsburg, Sotomayor and Kagan joined this majority opinion, written by Justice Scalia, I must note my concern here with the concurrence written by Justice Alito and Chief Justice Roberts:

In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution. [1-2]

When all of the characteristics of video games are taken into account, there is certainly a reasonable basis forthinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand. [16-17]

Fortunately, the five-vote majority carried the day, clearly establishing the principle that the First Amendment is medium-neutral over Alito & Roberts “wait and see, evaluate each new medium afresh” approach. Anyway, back to the good stuff: how well the Court lined up with our arguments!

  • Our Brief, Point 2b. Every state “violent” videogame law has therefore failed strict scrutiny, and the Ninth Circuit’s decision was wholly consistent with the considered judgment of numerous courts.
  • The Court: Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” [5-6] … 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 [17].
  • Our Brief, Point 2c. Amici fear that California’s age-based restrictions will migrate to the Internet, where the ineffectiveness of age-verification tools could inspire identity-verification requirements that would chill adults’ access to fully protected speech.
  • The Court: [This is the one argument the Court did not reach, which is hardly surprising, given the complicated issues online age verification raises, going back to the extensive COPA litigation.]
  • Our Brief, Point 3a. The laboratory research on which California bases its legislative findings—to which California now asks this Court to defer—does not support harm to any compelling state interest. Social scientists hotly debate the methodological validity of media-violence research, and that research defines “violence” and “aggression” in ways that conflict with society’s understandings: Research that classifies the well-known children’s videogame “Super Mario Brothers” as “violent” is of dubious relevance to real-world concerns about violence.
  • The Court: The State’s evidence is not compelling. California relies primarily on … studies [that] 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 research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” 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. [12-13]
  • Our Brief, Point 3. Moreover, Turner deference is completely inapplicable to content-based regulation of fully protected speech.
  • The Court: [California’s] reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. California’s burden is much higher, and because it bears the risk of uncertainty, ambiguous proof will not suffice. [12] … Because the Act imposes a restriction on the content of protected 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. The State must specifically identify an “actual problem” in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” [11]

In conclusion, let me again simply quote from the conclusion of our brief: “California’s legislature has succumbed to moral panic, as lawmakers have so often done when confronted with the media of a new generation. Speech is undoubtedly powerful, and new forms of speech are always controversial. Time and again, however, the feared harms of new forms of expression have proven to be fears, not harms. This case is no different.”

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