First Amendment Wins in Brown v. EMA

June 28, 2011 Posted by E. Zachary Knight

Seal of the Supreme court of the United StatesYesterday, the Supreme Court of the United States finally passed their ruling on the video game case, Brown vs. EMA. This ruling was a long time coming, clocking at 7 months. What came as no surprise was that the ruling was in favor of the video game industry on the grounds that the California restrictions on the sale of violent video games to minors was a violation of the First Amendment right to free speech.

I am glad that this ruling came out this way. I am also glad that they ruled the California law was a violation of free speech rather than ruling against it on grounds of “vagueness.” The ruling ended up being 7 against the law and 2 for it. The ruling itself comes in 4 parts. The first part is the majority opinion. This is the actual ruling and what has become the law of the land. This was written by Justice Scalia and was joined by 4 other justices. The second part is a concurring opinion written by Justice Alito and Chief Justice Roberts in which they agree that the law should be struck down, but on a different reason than the majority. While the majority ruled the law unconstitutional on First Amendment grounds, Alito and Roberts feel the law is justifiable but needed to be struck down on vagueness grounds.

The third and fourth parts are dissenting opinions from Justices Thomas and Breyer, respectively. I will be focusing on the concurring and dissenting opinions in another post.

I want to focus on some of the key points I liked in the majority opinion.

First we have the primary ruling:

We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at ___ (slip op., at 9). But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.”

Here they are saying that there is no reason why such a law could be constitutional. I like that they called this a “startling and dangerous proposition” as it would set a chilling effect not only on games but also on other forms of entertainment.

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,”

Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York,

With this statement they are drawing a clear line between sexual obscenity and violence. There is no historical record that any legislature or previous courts would have classified violent content along with sexual obscenity. Just because California attempted to classify violent games as such, doesn’t make it so.

California’s argument would fare better if there were a longstanding 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 in- deed.

Here we see the Justices further what they stated before. We have no history of ever restricting violent content, why start now? They use some great examples that resemble what the Judge who ruled against the Oklahoma law used. The original Grimm Fairy Tales are nothing like the sugar coated Disney movies.

In the way of examples, I really like this next example of violent media that is not barred from children.

In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface.

It is just so gratifying to see the Justices take such a jab at politicians.

As for the argument that video games enable participation in the 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 more interactive. 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, to experience their joys and sufferings as the reader’s own.”

Here, the justices see right through the smokescreen raised by supporters of this law that games are different because they are interactive. All media is interactive to some extent and the better the media is the more interactive it is.

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,

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 can make a predictive judgment that such a link exists, based on 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.

This is some good stuff. The justices have ruled that California provided no compelling state interest. They provided no solution to an existing problem. On top of that they failed to identify an actual problem. This next part rips into it even more.

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,6 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.”

Even the research that California used in its defense has been seen as worthless by the Justices. The studies by Craig Anderson have been debunked by other researchers on many occasions. They don’t show a causal link between violent game play and aggressive behavior. In fact, his own studies show similar effects when children view violent movies, cartoons and pictures, as they state next.

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young 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 gov- ernment is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.

Now this is something I have question every such piece of legislation. Why treat violent games different from other violent forms of entertainment? If you are going to restrict one media, why not all? I like that this alone would be enough to defeat the law and am glad they didn’t stop here.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper gov- ernmental means of aiding parental authority.

This quote really hit home with me. I have been a long time advocate for parental rights and authority. I do not think that this legislation helped parents do much of anything. Parents are the ultimate authority in their homes and have all the tools needed to prevent their children from playing games they don’t want them to play. Why do they need a law to override that authority?

the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restricting target- marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.”

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.

This one is something that supporters of this law always ignore. The federal government’s FTC has found over the last 5 years that volunteer ratings enforcement is better in the video game industry than any other media. This shows that the least restrictive method of regulation, volunteer self regulation, is doing well enough on its own that it does not need a law to punish the 20% of sales clerks who fail in their duties.

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 restriction of First Amendment rights requires.

Now here is another rub. This law would prevent a parent from allowing their child from buying a game, but not prevent them from playing. This makes no sense. Additionally, this does nothing to change the behaviors of parents who do not actually care about game content. This raises no awareness of game rating or content among parents. It does nothing. So why is it needed.

I will end with the final word from Justice Scalia as he ended it in his ruling:

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.

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