As a librarian whose job is connected closely with the sharing of information, I find myself drawn to First Amendment cases. As a geek, I find myself drawn to video game cases. Well, as luck would have it, the United States Supreme Court handed down its first ruling in a case involving video games in Brown v. Entertainment Merchants Association, and it’s a First Amendment case!
For those who aren’t familiar with the case, in 2005, California passed a law banning the sale of “violent video games” to minors. A group representing the video game industry brought suit claiming a violation of First Amendment rights. A California district court agreed, as did the Ninth Circuit. Here’s what the Supremes had to say (citations omitted):
The Act does not comport with the First Amendment.
(a) Video games qualify for First Amendment protection. Like protected books, plays and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium. The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter or content — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. Unlike the New York law upheld in Ginsberg v. New York, California’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive.
(b) Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. California cannot meet that standard. Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly under inclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly over inclusive, since not all of the children who are prohibited from purchasing violent video games have parents who dis-approve of their doing so. The Act cannot satisfy strict scrutiny.
W. Blake Wilson, Head of Instructional & Research Services