Advancing a Free Society

Brown v. Entertainment Merchants Association: SCOTUS Strikes Down Law that Prohibits Sale or Rental of Violent Video Games to Minors

Wednesday, August 10, 2011

The Supreme Court issued a 7-2 decision which struck down, on First Amendment grounds, California Assembly Bill 1179 that prohibited the sale or rent of violent video games to minors.  The betting here is that Brown v. Entertainment Merchants Association represents only the opening salvo in what will prove to be a very long war.

To start from the beginning, any decision for the private party comes as something as a surprise because it necessarily overrides two strong state interests that have previously protected many state laws from First Amendment attacks.  The control against violence is always a legitimate state interest, as is the protection of minors.  It took therefore some fancy footwork from Justice Scalia to explain why this statute did not fall into these broad categories.  His answer was that the California law sought to create a new class of speech that is exempt from constitutional scrutiny, which could not be done since the time-honored principles that applied to books could carry over to the new forms of communication.  The legislature is thus not free “to add new categories of unprotected speech” to the list of wrongful conduct.

Yet in this instance, the level of novelty is nonexistent, and a credible argument could be made that the mode of communication to minors could easily change the type of responses that they have to these forms of speech.  It was arguments of this sort that led Justice Alito, with Chief Justice Roberts concurring, to take a different approach that asks whether a narrower statute targeted at some extreme forms of violence could survive constitutional muster.  Fair question, as far as I am concerned, because both types of justification for this statute fall comfortably within the libertarian concerns with violence and infancy.  This statute is not like a campaign finance statute that forces one side of an election to subsidize in effect another, which a divided Supreme Court struck down today in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett.

The long term fragility of this opinion is even greater in light of the very different dissents of Justices Thomas and Breyer.  For Justice Thomas the key issue was the originalist question of whether the entire topic of violent speech directed toward minors even fit within the framework of the First Amendment, to which he, after an exhaustive study of the early sources, concluded was not the case.  The case strays too far from the core concerns with political or even commercial speech.

At the opposite extreme, Justice Breyer noted that the video gives in question involve both speech and action, and thus would require a strong empirical foundation to justify these rules, which he could not find in his exhaustive compilation in the literature.  The 7 to 2 vote could easily be read as 5 to 4, with respect to the overall field.  Who knows whether one of the five votes with Scalia could be pried loose.  No one can say for sure, but what seems highly likely is that another round of legislation will follow the derailment of the California law, so that we have not seen the last of this issue.

(photo credit: Scott Kellum)