564 U.S. 786 (2011), 08-1448, Brown v. Entm't Merchs. Ass'n

Docket Nº:08-1448
Citation:564 U.S. 786, 131 S.Ct. 2729, 180 L.Ed.2d 708, 79 U.S.L.W. 4658, 22 Fla.L.Weekly Fed. S 1259
Opinion Judge:Scalia, Justice.
Party Name:EDMUND G. BROWN, Jr., GOVERNOR OF CALIFORNIA, et al., Petitioners v. ENTERTAINMENT MERCHANTS ASSOCIATION et al
Attorney:Zachery P. Morazzini argued the cause for petitioners. Paul M. Smith argued the cause for respondents.
Judge Panel: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, post, p. 805. Thomas, J., post, p. 821, and Breyer, J., post, p. 840, filed dissenting opinions. ...
Case Date:June 27, 2011
Court:United States Supreme Court
 
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Page ___

___ U.S. ___ (2011)

131 S.Ct. 2729

EDMUND G. BROWN, Jr., GOVERNOR OF CALIFORNIA, et al., PETITIONERS

v.

ENTERTAINMENT MERCHANTS ASSOCIATION et al.

No. 08-1448

United States Supreme Court

June 27, 2011

         Argued November 2, 2010.

         On Writ of certiorari to the united states court of appeals for the Ninth Circuit.

         [131 S.Ct. 2731] Syllabus [*]

         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. 2733 - 2742.

(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, 72 S.Ct. 777, 96 L.Ed. 1098. 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, 122 S.Ct. 1700, 152 L.Ed.2d 771—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. ------, ------, 130 S.Ct. 1577, 176 L.Ed.2d 435. Unlike the New York law upheld in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, 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. 2733 - 2738.

(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, 112 S.Ct. 2538, 120 L.Ed.2d 305. 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 [131 S.Ct. 2732] 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. 2738-2742.

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.

         Zachery P. Morazzini, for petitioners.

         Paul M. Smith, for respondents.

         California Attorney General's Office, Sacramento, CA, Edmund G. Brown Jr., Attorney General of California, David S. Chaney, Chief Assistant Attorney General, Gordon Burns, Deputy Solicitor General, Manuel M. Medeiros, State Solicitor General, Jonathan K. Renner, Senior Assistant Attorney General, Zackery P. Morazzini, Counsel of Record, Supervising Deputy Attorney General, Daniel J. Powell, Deputy Attorney General, for Petitioners.

         Kenneth L. Doroshow, Entertainment Software Association, Washington, DC, Counsel for Respondent Entertainment Software Association, Paul M. Smith, Counsel of Record, Katherine A. Fallow, Matthew S. Hellman, Duane C. Pozza, William M. Hohengarten, Jenner & Block LLP, Washington, DC, Jonathan F. Olin, David Z. Moskowitz, Krishanti Vignarajah, Not admitted in DC, supervised by principals of the firm, Jenner & Block LLP, Washington, DC, Counsel for Respondents.

         OPINION

         Scalia Justice

         We consider whether a California law imposing restric­tions on violent video games comports with the First Amendment.

         I

         California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) (Act), prohibits the sale or rental of "violent video games" to minors, and requires their packaging to be labeled "18." The Act covers games "in which the range of options available to a player in­cludes killing, maiming, dismembering, or sexually as­saulting an image of a human being, if those acts are depicted" in a manner that "[a] reasonable person, consid­ering the game as a whole, would find appeals to a deviant or morbid interest of minors, " that is "patently offensive to prevailing standards in the community as to what is suit­able for minors, " and that "causes the game, as a whole, to lack serious literary, [131 S.Ct. 2733] artistic, political, or scientific value for minors." §1746(d)(1)(A). Violation of the Act is pun­ishable by a civil fine of up to $1, 000. §1746.3.

         Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the United States District Court for the Northern Dis­trict of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. Video Software Dealers Assn. v. Schwar­zenegger, No. C–05–04188 RMW, 2007 WL 2261546 (2007), App. to Pet. for Cert. 39a. The Court of Appeals affirmed, Video Software Dealers Assn. v. Schwarzenegger, 556 F.3d 950 (C.A.9 2009), and we granted certiorari, 559 U.S.------, 130 S.Ct. 2398, 176 L.Ed.2d 784 (2010).

         II

         California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. "Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Consti­tution, "esthetic and moral judgments about art and lit­erature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary" when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).

         The most basic of those principles is this: "[A]s a general matter, . . . government has no power to restrict expres­sion because of its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omit­ted). There are of course exceptions. "'From 1791 to the present, ' . . . the First Amendment has 'permitted restric­tions upon the content of speech in a few limited areas, ' and has never 'include[d] a freedom to disregard these traditional limitations.'" United States v. Stevens, 559 U.S. ------, ------, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 ------, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (quoting R. A. V. v. St. Paul, 505 U.S. 377, 382-383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). These limited ar­eas—such as obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447-449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam), and fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct....

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