Supreme Court Says "GAME OVER" to Law Banning Minors from Purchasing Violent Video Games

Photo titled "Supreme Court Violent Videogame Trial Courtroom Drawings" courtesy of Zero-Lives on Flickr

This summer, the United States Supreme Court held that a California statute banning the sale or rental of “violent video games” to minors was unconstitutional. Justice Scalia, writing for the majority, held that video games qualified for First Amendment protection, that violent video games were not excluded from protection based on the Court’s obscenity jurisprudence, that violent video games were not unique so as to be their own category of unprotected speech, and that the California statute failed to meet strict scrutiny. Justice Alito and the Chief Justice concurred, with Justices Thomas and Breyer filing separate dissents.

The court briefly addressed whether video games as a technological medium qualified as speech protected under the First Amendment. Comparing video games to books, plays, and movies, the Court quickly held that video games were a protected form of speech.

The Court then addressed the issue of whether violent video games were considered obscenity, a form of non-protected speech. Focusing on the Court’s obscenity jurisprudence, Justice Scalia aptly noted that obscenity had been limited to certain sexually explicit content. The Court has had the opportunity to expand this definition on several occasions, including to violence, most recently in U.S. v. Stevens, but has declined to do so.

In holding that violent video games were not obscenity, the Court next addressed whether violent video games should be their own category of non-protected speech. Leaning on his originalist tendencies, Justice Scalia recounted the historical absence of banning minors from accessing violent content. The Court referenced the violence portrayed in Grimm’s Fairy Tales, Homer’s Odyssey, and Dante’s Inferno—stories that are currently, and historically have been, read to minors. Citing this historical exposure to violence, the Court found no reason to carve out a new exception for violent video games from the First Amendment.

At that point, the Court turned to a traditional strict scrutiny analysis, reiterating that a restriction of protected speech was presumptively invalid unless the state could demonstrate that the statute was narrowly tailored to serve a compelling government interest. Justice Scalia was quick to point to the lack of a causal link between minors playing violent video games and harm to minors. Without an actual harm that needed preventing, the Court logically held that the state had no compelling interest, and therefore the statute was unconstitutional.

The Court’s decision in Brown v. EMA is consistent with their First Amendment jurisprudence and is a victory for free speech, minors, and the video game industry. A full copy of the Court’s decision may be found here.