Brown, et al. v. Entertainment Merchants Association, et al.

Constitutionality of Restrictions on Sales of Video Games to Youth

Term: 2010 Term
Oral Argument Date: Nov 2, 2010
Vote: 7-2
Opinion: Scalia
Questions Presented: 

(1) Does the First Amendment bar a state from restricting the sale of violent video games to minors?

(2) If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

U.S. Chamber's Position: 

NCLC urged the Supreme Court to reject California's ban on the sale of violent video games to minors because the law does not meet the standard of strict scrutiny. NCLC argued that the Supreme Court's First Amendment jurisprudence requires the law to satisfy the standard, which would require California to choose the least restrictive means of regulating protected speech. While NCLC supports California's goal to shield children from age-inappropriate material, NCLC noted that California's law fails to adopt the least restrictive means for regulating violent video games, and that industry self-regulation is a highly effective and less restrictive alternative. The law creates a new category of unprotected speech that deters innovation, development, and investment in mass media.

Outcome Content: 

The U.S. Supreme Court held that a California law banning the sale or rental of violent video games to minors violated the First Amendment. The Court agreed with NCLC that argued that the law created a new category of unprotected speech that deterred innovation, development, and investment in mass media. NCLC urged the Supreme Court to reject California's ban on the sale of violent video games to minors because the law did not adopt the least restrictive means for regulating violent video games. The Court agreed with NCLC and affirmed the lower circuit, noting that the video industry's voluntary ratings system already addressed the state's concerns and was a much less restrictive means for regulating violent video games.

Justices in Minority: 
Procedural History: 

Cert. granted 4/26/10. Amicus brief on the merits filed 9/17/10. Decided on 6/27/2011.