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Entertainment Merchants Association

By Jason E. Carlie

On Monday, the Supreme Court struck down a California statute that prohibited the sale or rental of "violent video games" to minors, required modification of the labeling of their packaging, and established a civil fine of up to $1000 for violations. Cal. Civ. Code Ann. §§1746-1746.4 (West 2009). The statute, challenged by representatives of the video game industry, covered games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a way that "[a] reasonable person, considering the game as a while, would find appeals to a deviant or morbid interest of minors," "patently offensive to prevailing standards in the community as to what is suitable for minors," that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." Id. at §1746(d)(1)(A).

The majority opinion written by Justice Scalia, with Justices Kennedy, Ginsburg, Sotomayor and Kagan concurring, concluded that videogames communicated ideas and as such, were protected by the First Amendment.

Relying upon its decision in United States v. Stevens from the previous term, the majority stated that "new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." Under Stevens, a facial challenge based on the First Amendment can succeed only if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." U.S. v. Stevens, 559 U.S. __,___ (2010). It is more difficult to mount a facial First Amendment attack on a statute that seeks to regulate activity that involves action as well as speech. Broadrick v. Oklahoma, 413 U.S. 601, 614-615 (1973). The Court stated that Stevens controlled Entertainment Merchants Association, and opined that "California has tried to make violent-speech regulation look like an obscenity regulation by appending a saving clause" and analogized the statute at issue attempting to mimic the obscenity-for-minors statute upheld in Ginsberg v. New York.

The Court noted that "[i]t is rare that a regulation restricting speech because of its content will ever be permissible." California acknowledged that it could not show a direct causal link between violent video games and harm to minors. The Court criticized the State's reliance on Turner Broadcasting System v. FCC, 512 U.S. 622 (1994), which applied intermediate scrutiny to content-neutral regulation. The California statute at issue in Entertainment Merchants Association, however, is content-specific, and as a result, must meet a strict scrutiny which requires that the California law must be "narrowly tailored" to further a "compelling interest" without there being a "less restrictive" alternative that would be "at least as effective." Reno v. American Civil Liberties Union, 521 U.S. 844, 874, 875, 879 (1997).

The California statute at issue suffered from three insurmountable issues. It was under-inclusive in two respects. First, it singled out video game creators and compared them against other kinds of speakers, such as "booksellers, cartoonists, and movie producers," without giving any "persuasive reason why." As such, the statute raised "serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint."

Second, the Court felt that the statute was under-inclusive, in that California is "perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent [or guardian]" approves of it. Further, the majority also notes that there weren't any requirements to verify the nature of the relationship. This appeared to the court to be a rather lax way to address "a serious social problem."

As a result, California could not show that the statute'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 Court then pointed to the video-game industry's voluntary rating system designed to inform consumers about each games' content.

Third, the Court held that the Act was wildly over-inclusive. It pointed out that "[n]ot 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." The Statute's entire effect, according to the Court, "is only in support of what the State thinks parents ought to want." (emphasis in original). Thus, the statute was not narrowly tailored to assisting parents, as the First Amendment requires.

Justice Alito, in his concurrence, would reach the same conclusion, but instead chose to focus on the "impermissibly vague" argument that the video-game industry raised.

Justice Alito started by citing the due process rule, requiring that laws give people of ordinary intelligence fair notice of what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Then he pointed out several deficiencies that, in his opinion, rendered the statute void for vagueness. First, the California statute did not define "violent video games" with the "narrow specificity" the Constitution requires. Second, California "relied on undefined societal or community standards" as to what is suitable for minors. The California law is heavily dependent on the identification of generally accepted standards regarding the suitability of violent entertainment for minors, while leaving such critical terms as "deviant" and "morbid" undefined in the statute.

Moreover, the fact that there is no jurisprudence on the books regarding the standards for expression related to violence further weakens the state's failure to define what he felt were critical terms.

Justice Alito disagreed with the majority that Stevens controlled the analysis, because the statute in that case was sharply different from the one in Entertainment Merchants Association. Stevens related to a law that "broadly prohibited any person from creating, selling, or possessing depictions of animal cruelty for commercial gain." The Justice stated that the California statute in Entertainment Merchants Association "limited the sale or rental of violent video games to minors," and pointed out that there was no restriction on the creation of the games, nor was there one against adults from purchasing them.

Stevens, according to Alito, does not support the proposition that a law like the violent video games law has to satisfy strict scrutiny. For Justice Alito, the end result is that the majority opinion is a "sweeping" suggestion that "no regulation of minors' access to violent video games is allowed - at least without supporting evidence that may not be realistically obtainable given the nature of the phenomenon in question."

Justice Thomas' dissent took a novel approach. He did not rule on the statute on First Amendment grounds, essentially holding that minors have no constitutional right to speak or be spoken to without their parents' consent. There is no case citation supporting that proposition. It appeared to be an exercise in discerning what the Framers envisioned for the First Amendment's application to children via extended references to historical books on the nature of colonial- and post-Revolutionary War- era childrearing.

Justice Breyer's dissent applied a more conventional approach. He applied both the Court's vagueness precedents, and Stevens. He opined that the special category of protection is not "depictions of violence," but rather the protection of children. He would hold that the California statute provides fair notice of the prohibition, and therefore, it isn't impermissibly vague, in contrast to Justice Alito's concurring opinion. Breyer also believed that the California law survived strict scrutiny in that it was narrowly tailored, furthered a compelling state interest, and there was no less restrictive alternative that was at least as effective. Applying that rule, he would find that California's law imposed merely a modest restriction on expression, prevented no one from playing a video game, no adult from buying one, and no minor from getting one if a parent got one for them. To him, the California law advanced a compelling state interest in that the basic parental claim to authority over childrearing makes it proper to enact laws designed to further that cause, and the State's independent interest in the well-being of youth. He eschewed the majority's acknowledgement of the video-game industry's voluntary rating system as a less restrictive alternative as least as effective. Thus, he found that the law is not fatally under-inclusive, and cited many psychological studies to support his opinion.

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This page contains a single entry from the blog posted on July 1, 2011 12:56 PM.

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