The First Amendment and Video Games – Part 5: Brown v. EMA

In parts 1-4 of this First Amendment series, I gave an introduction, provided the basics of the First Amendment and talked about what First Amendment protection means along with what speech is protected.

In this post, I will give a bit of context for how those standards are applied to video games, specifically.

Brown v. EMA

Until 2011, there was no concrete decision on whether video games even were considered expression and speech under the First Amendment. That was resolved by the decision in Brown v. EMA.

In that case, the Entertainment Merchants Association challenged a California law that would have restricted the sale or rental of “violent video games” to anyone under the age of 18. It is the first and only Supreme Court case to include mention of Mortal Kombat.

The U.S. Supreme Court concluded that the First Amendment barred the state of California from restricting the sale of violent video games.

The late Justice Scalia wrote the opinion of the court. He wonderfully compares the violence in games the violence in other media. Rather than try to summarize, I have excerpted then opinion here:

Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake.  … In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. …

This is not to say that minors’ consumption of violent entertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. When motion pictures came along, they became the villains instead. “…

Radio dramas were next, and then came comic books. Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate. But efforts to convince Congress to restrict comic books failed. And, of course, after comic books came television and music lyrics.

…California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

He then lays out the legal framework, and works through the analysis:

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an “actual problem” in need of solving…

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors…

[California’s] regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why.

The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. …

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. …

…The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). . . . In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) re-stricting children’s access to mature-rated products at retail.” …

And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires.

Overall, this is a glowing decision for videogames. And it is one that everyone in the industry welcomed.

The Makeup of the Court

As mentioned, Justice Scalia wrote the opinion of the court. In that opinion, Justices Kennedy, Ginsburg, Sotomayor and Kagan joined.

Justices Alito and Roberts entered a concurring opinion agreeing in the judgment, but wrote separately to say that while this law and this technology did not pass constitutional muster, future technology might not be so protected. “If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.”

Two justices dissented, disagreeing with the premise of protection for video games as free speech.

Why do I bring this up? Of the five justices that agreed with both the judgment and the logic supporting it, two are no longer on the court at the time of this post. Justice Scalia passed away and his seat was filled by Justice Gorsuch. Justice Kennedy retired and his seat was filled by Justice Kavanaugh.

Justices Gorsuch and Kavanaugh have different beliefs than Scalia and Kennedy. If their views tipped the balance of the court on this issue toward, say, the concurrence, the majority of the court could uphold, in a future case, a different statute with new technology that still restricted speech. If the opinion of the court was similar to the concurrence here, but now with four justices and a conclusion that determined the legislation passed muster, and a new concurrence that mirrored the dissent here but agreed with the conclusion… welp, then we’d have a restriction on video games as speech.

Why does it matter?

Individual developers and publishers should be aware of this.

Free speech is the underpinning of all great entertainment.

Games as political messaging, games as dissent and games for change are just as critical as other media. In some cases, they can be more effective. Violent games, perverse games, games that push the boundaries of social norms all deserve protection. The fights about free speech often occur in these fringes, but it is the buffer of the fringes that protect the core of speech and artistic expression.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on transactions and video games, digital media, entertainment and internet related issues. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.

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