Brown v. Entertainment Merchants Association

June 27, 2011

California Assembly Bill 1179 (2005)

• The Act prohibits the sale or rental of ‘violent video games’ to minors

• The Act requires their packaging to be labeled “18”

• Violations of the act are punishable by a fine of up to $1,000 per violation

Definition of “violent video games”

• 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 manner that a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors”

• That is patently offensive to prevailing community standards for minors

Definition, continued

• The game, as a whole, lacks serious literary, artistic, political or scientific value for minors

Justice Scalia

• Video games have 1A protection– They “communicate ideas—and even social

messages– through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the visual world”

Strict Scrutiny

• Compelling state interest (“an actual problem in need of solving” and the curtailment of free speech must be actually necessary to the solution”)– Not found—research does not show there is a causal

connection between violent video games and aggressive behavior by minors. All that is shown is a correlation between the games and reporting short term feelings of aggression or making louder noises than non-players (similar to research on violent cartoons, like “Road Runner”)

Strict Scrutiny

• Not narrowly tailored– Under inclusive• It doesn’t include violent video non-games, music,

books, movies, etc.

– Over inclusive• Many parents do not object to their children playing

violent video games

Ruling

• The Act is unconstitutional