2010-2011 Supreme Court Term: Decision in Brown v. Entertainment Merchants Association

Yesterday the Supreme Court released its decision in Brown v. Entertainment Merchants Association.  The Court struck down a California law that made it illegal for merchants to sell violent video games to children.  The Court found that this law violates the First Amendment.

Justice Scalia authored the decision for the Court.  He was joined by four other justices: Kagan, Sotomayor, Ginsburg, and Kennedy.  Justice Scalia relied primarily upon the decision of the Court last year in United States v. Stevens, where the Court struck down a federal law prohibiting the creation or dissemination of recordings of animal cruelty.  The Court in that case had found:

1.  Depictions of animal cruelty are not an "unprotected category of speech" because historically the government has not regulated violent speech;

2.  Under strict scrutiny, the government was unable to prove that the sale of videos depicting animal cruelty stimulated acts of animal cruelty, the was that the market for child pornography stimulated sexual abuse of children; and

2.  The "Depictions of Animal Cruelty" statute was too vague and might be applied to protected speech such as documentaries about hunting, bullfighting, or the processing of farm animals.

In this case Justice Scalia followed a similar pattern of reasoning.  He found that there is no American tradition of regulating violent expression aimed at children, and therefore there was no "unprotected category" of such speech.  He found that the State of California had failed to prove that exposure to violent video games causes violence in children.  And he found that the implications of this law would allow unprecedented restriction on what children may be exposed to.  Justice Scalia referenced a number of examples of violent art or literature that children or young teens may be exposed to: Grimm's Fairy Tales, Greek myths, Saturday morning cartoons, the Inferno, and Lord of the Flies – suggesting that therefore violent video games could not be singled out for prohibition. 

Justice Alito, joined by Justice Roberts, issued a separate concurring opinion.  Justice Alito agreed with the result but not the reasoning of the majority.  Here are the introductory paragraphs of the concurring opinion:

The California statute that is before us in this case represents a pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create. Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the Court that this particular law cannot be sustained.

I disagree, however, with the approach taken in theCourt�s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibilitythat developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technologyis fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

In the view of the Court, all those concerned about the effects of violent video games�federal and state legisla-tors, educators, social scientists, and parents�are unduly fearful, for violent video games really present no seriousproblem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in �kind� from reading a description of violence in a work of literature.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.

Justice Alito would strike down the law solely because the State failed to narrowly define the term "violent video game" – he would have left the door open to a more narrowly tailored statute, just as the Court did in Stevens.

Justice Thomas dissents from the Court's decision on the ground that it does not comport with the original understanding of the framers – either the framers of the First Amendment or the framers of the Fourteenth Amendment.  Thomas suggests that people such as the Entertainment Merchants Association do not have a constitutional right to speak to other's people's children – that traditionally parents have had the authority to limit and control who may speak to their children.  Thomas asserts that this was the original understanding of the framers of the Constitution, and that accordingly the law is constitutional because the plaintiffs have no constitutional basis for their First Amendment claim.

Dissenting separately, Justice Steven Breyer concedes that the constitutionality of this law is governed by strict scrutiny, but he contends that the government has met its burden of proof in this regard.  In particular, he suggests that the closest precedent is not United States v. Stevens but rather Ginsburg v. New York, the case in which the Court upheld a law prohibiting the sale of pornography to minors.  Breyer observes that the California law merely prohibits sale to minors, not production and dissemination generally, and that the restriction on freedom of expression is therefore narrower than the total ban that was involved in Stevens.  Breyer would find that the protection of children is a compelling governmental interest, and that the law is sufficiently narrowly tailored to pass constitutional muster.

I gravitate strongly toward the practical reasoning of Justices Alito and Breyer and away from the historical analysis of Justices Scalia and Thomas.  One objection I have to the historical approach is that it is so manipulable.  Justice Scalia, for example, points to Grimm's Fairy Tales as examples of violent fare traditionally fed to children, but do you know any parents who still tell these stories to children at least in a form remotely like the gory originals?  Nor would it be appropriate for parents to read the Inferno  to little children or show them art based upon that masterpiece.  We make nervous jokes about what movies children should be exposed to:  "Joey … do you like movies about gladiators?"  The Disney version of The Hunchback of Notre Dame – bowdlerization that it may be – is far more typical of what American parents allow their children to view than Victor Hugo's original.  Very simply, there is a longstanding tradition of limiting children's exposure to violence.  The movie rating system and limitations on daytime broadcast of programs unsuitable for children are but two examples.  Justice Scalia could have pointed to all those traditions instead of the competing tradition of license, and this law could have easily been upheld on that ground.

I prefer the balancing approach because I believe that every other form of analysis masks it.  The language of the Constitution ("Congress shall make no law … abridging the freedom of speech") merely sets us on the path but does not tell us how far we may go down it – in this case, whether we may prohibit the sale of violent video games to children.  The framers of the Constitution and the Fourteenth Amendment had very little to say about this particular topic, perhaps because video games would not be invented until several generations later.  As described above, there are competing American traditions on this subject, as well as competing precedents such as Stevens and Free Speech Coalition on the one hand and Ginsburg and Pacifica on the other.  Ultimately we call upon the Supreme Court to decide whether the expressive interests of merchants in selling violent video games directly to children outweighs the harm that may result from children playing those games.  I don't see any way around the Court having to make that difficult judgment.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

Tagged as: balancing, brown v. ema, brown v. entertainment merchants association, constitutional interpretation, freedom of expression, freedom of speech, historical analysis, legal realism, policy analysis, tradition in constitutional analysis, violent video game case, violent video games, weighing