First amendment protects video games (US SC decision,June 27, 2011)

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SUPREME COURT OF THE UNITED STATES
Syllabus
BROWN, GOVERNOR OF CALIFORNIA, ET AL. v.
ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 08–1448. Argued November 2, 2010—Decided June 27, 2011

Respondents, representing the video-game and software industries,
filed a preenforcement challenge to a California law that restricts the
sale or rental of violent video games to minors. The Federal District
Court concluded that the Act violated the First Amendment and
permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2–18.

(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. Joseph Burstyn, Inc. v. Wilson,
343 U. S. 495, 503. The most basic principle—that government
lacks the power to restrict expression because of its message, ideas,
subject matter, or content, Ashcroft v. American Civil Liberties Union,
535 U. S. 564, 573—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. See United States v. Stevens, 559 U. S. ___, ___. Unlike the
New York law upheld in Ginsberg v. New York, 390 U. S. 629, 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 outcome,
is unpersuasive. Pp. 2–11.

(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. R. A. V. v. St.
Paul, 505 U. S. 377, 395. 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 underinclusive, 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 overinclusive, since not all of the children who are prohibited
from purchasing violent video games have parents who disapprove
of their doing so. The Act cannot satisfy strict scrutiny.
Pp. 11–18.
556 F. 3d 950, affirmed.

SCALIA, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion
concurring in the judgment, in which ROBERTS, C. J., joined. THOMAS,
J., and BREYER, J., filed dissenting opinions.