Brown v. Entertainment Merchants Association

131 S. Ct. 2729 (2011), aff’g sub nom. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009)

Previous case names:
Video Software Dealers Association and Entertainment Software Association v. Schwarzenegger; Video Software Dealers Association v. Schwarzenegger, No. C-05-04188 RMW (N.D. Cal. 2005), aff’d, 556 F.3d 950 (9th Cir. 2009); Schwarzenegger v. Entertainment Merchants Association

In June 2011, the United States Supreme Court ruled 7-2 that California’s law restricting minors’ access to video games with violent content is unconstitutional. Justice Antonin Scalia wrote the majority opinion, writing:

  • “… video games qualify for First Amendment protection.”
  • Regarding the obscenity standard claim by California: “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,'” as defined in Miller v. California.
  • Regarding First Amendment protections for minors: “[The California 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, it 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.”
  • Regarding strict scrutiny test: “The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act agressively.”

The case was brought by Media Coalition members Entertainment Merchants Association and Entertainment Software Association, and several other Media Coalition members submitted an amicus brief in the Supreme Court and in the 9th Circuit Court of Appeals in support of the plaintiffs.


California enacts law
On October 7, 2005, Governor Arnold Schwarzenegger signed into a law Assembly Bill 1179 [19], which restricted the sale or rental of certain video games to anyone under the age of 18. The computer and video games are classified as “violent video games” and restricted if the depictions of violence are “offensive to the community” or if the violence depicted is committed in an “especially heinous, cruel, or depraved” manner. Under the law, game manufacturers and distributors would be required to label games with 2″ x 2″ stickers displaying the numeral “18” on their front covers.

District Court challenge
The Video Software Dealers Association (now known as Entertainment Merchants Association) and Entertainment Software Association filed a complaint [18] challenging the law in U.S. District Court for the Northern District of California on October 17, 2005. The case was filed as VSDA and ESA v. Schwarzenegger.

On December 21, 2005, U.S. District Judge Ronald Whyte granted a preliminary injunction [17], barring enforcement of the California video game law while the lawsuit is pending. The judge found that the law likely violates the First Amendment.

On August 6, 2007, Judge Whyte granted a permanent injunction [16]. The district court ruled that the law violated the First Amendment and that, while the government has a compelling interest in protecting minors, defendants did not offer proof that video games are any different from other media, nor does any generally accepted study exist to support the idea that the interactive nature of video games leads to violent behavior.

9th Circuit Court appeal
The State of California appealed the granting of a permanent injunction to the 9th Circuit Court of Appeals on September 5, 2007. The state filed its appeal brief [15] on January 2, 2008. VSDA and ESA filed their briefs on February 7, 2008.

Media Coalition submitted an amicus brief in the 9th Circuit [13] in support of the plaintiffs on February 13, 2008. The amicus brief argues: first, that the state’s claim is contrary to all U.S. Supreme Court and Courts of Appeals precedent and could lead to a wide array of mainstream books, magazines, movies, videos, recordings, and other material with violent content becoming subject to regulation; second, that the terms used to define a “violent video game” are unconstitutionally vague; and third, the labeling requirement is unconstitutional compelled speech and a content-based requirement.

On February 20, 2009, the 9th Circuit upheld [12] the District Court’s ruling that the law is unconstitutional.

Appeal to the Supreme Court
On May 20, 2009, Governor Schwarzenegger and Attorney General Jerry Brown filed a petition for certiorari with the Supreme Court [11], asking the Court to hear an appeal of the 9th Circuit’s ruling. EMA (who changed their name from VSDA) and ESA submitted a response brief in opposition [10].

On April 26, 2010, the Supreme Court granted the State of California’s petition for certiorari. The Court’s decision to take the case marks the first time it has considered any of the recent spate of laws restricting or banning certain video games. The Court presented two questions to the parties:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
2. If the First Amendment applies to violent video games that are sold to minors and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., is the state required to demonstrate a casual link between violent video games and physical or psychological harm to minors before the state can prohibit the sale of video games? (citation omitted)

On July 12, 2010, the State of California filed its brief on the merits [9]. EMA and ESA submitted their brief on the merits [8] on September 10, 2010.

On September 17, 2010, Media Coalition members and others filed an amicus brief in the Supreme Court [6]. Media Coalition members American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, National Association of Recording Merchandisers (now the Music Business Association), and the Recording Industry Association of America signed the brief. They were joined by the Amusement & Music Operators Association, the Association of National Advertisers, PEN Center USA, and the Recording Academy.

The Supreme Court heard oral argument in the case on November 2, 2010.

On June 27, 2011, the Supreme Court held that the law is unconstitutional. Justice Scalia wrote the opinion for the court [1]. Justice Samuel Alito wrote a concurring opinion [2], which was joined by Chief Justice John Roberts. Justice Clarence Thomas wrote a dissent [3]. Justice Stephen Breyer also wrote a dissent [4]. (The case was decided as Brown v. Entertainment Merchants Association, after Governor Jerry Brown was elected to succeed Arnold Schwarzenegger between the time of the oral argument and the time of the Supreme Court’s decision.)

Amicus briefs in the Supreme Court:

In support of respondents, Entertainment Merchants Association and Entertainment Software Association

In support of petitioners, the State of California