Brown v. Entm't Merchs. Ass'n

• Court: U.S. Supreme Court
• Writing for the Court: Justice SCALIA delivered the opinion of the Court.
• Citation: Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 180 L. Ed. 2d 708, 564 U.S. 786 (2011)
• Decision Date: 27 June 2011
• Docket Number: No. 08–1448.,08–1448.
• Parties: Edmund G. BROWN, Jr., Governor of California, et al., Petitioners, v. ENTERTAINMENT MERCHANTS ASSOCIATION et al.

564 U.S. 786

131 S.Ct. 2729

180 L.Ed.2d 708

Edmund G. BROWN, Jr., Governor of California, et al., Petitioners,

v.ENTERTAINMENT MERCHANTS ASSOCIATION et al.

No. 08–1448.

Supreme Court of the United States

Argued Nov. 2, 2010.

Decided June 27, 2011.

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.

Justice SCALIA delivered the opinion of the Court.

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, 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 (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. 766, 86 L.Ed. 1031 (1942) —represent "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," id., at 571–572, 62 S.Ct. 766.

Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U.S.C. § 48 (amended 2010). The statute covered depictions "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if that harm to the animal was illegal where the "the creation, sale, or possession t[ook] place," § 48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), exempted depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value," § 48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a "simple balancing test" that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Stevens, 559 U.S., at ––––, 130 S.Ct., at 1585. We emphatically rejected that "startling and dangerous" proposition. Ibid. "Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law." Id., at ––––, 130 S.Ct., at 1586. But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the "judgment [of] the American people," embodied in the First Amendment, "that the benefits of its restrictions on the Government outweigh the costs." Id., at ––––, 130 S.Ct., at 1585.

That holding controls this case.¹ As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of "sexual conduct," Miller, supra, at 24, 93 S.Ct. 2607. See also Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ; Roth, supra, at 487, and n. 20, 77 S.Ct. 1304.

Stevens was not the first time we have encountered and rejected a State's attempt to shoehorn speech about violence into obscenity.

In Winters, we considered a New York criminal statute "forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person," 333 U.S., at 514, 68 S.Ct. 665. The New York Court of Appeals upheld the provision as a law against obscenity. "[T]here can be no more precise test of written indecency or obscenity," it said, "than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order." Id., at 514, 68 S.Ct. 665 (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest-balancing that we rejected in Stevens . Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U.S., at 517–519, 68 S.Ct. 665, made clear that violence is not part of the obscenity that the Constitution permits to be regulated. The speech reached by the statute contained "no indecency or obscenity in any sense heretofore known to the law." Id., at 519, 68 S.Ct. 665.

Because speech about violence is not obscene, it is of no consequence that California's statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the...