TWO First Amendment cases from last Term addressed when content regulation is justified by particularly compelling interests. The answer implied by both cases is: not often.
Brown v. Entertainment Merchants Ass'n took up a California law imposing a civil fine for selling violent video games to minors without the consent of a guardian.1 Like all such laws challenged thus far, this one had been struck down on First Amendment grounds in the lower courts.2 The Supreme Court affirmed in an opinion written by Justice Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.
The Court first held that video games were expression for purposes of the First Amendment. It then characterized California as attempting to create a new unprotected category of speech: speech that is unacceptably violent for minors.3 The Court rejected this category. It distinguished the special category of speech that is obscene as to minors on the ground that obscenity is also an unprotected category for adults. "Violent speech" is not an unprotected category as to adults, and thus no category exists which could be extended to provide special protection for children.4 Indeed, the Court said, given the violent content of children's faresuch as Grimm's Fairy Tales and The Lord of the Flies, there is no American tradition of protecting children from violent expression.5 The Court rejected the State's claim that video games pose special harms because they are interactive. "[A]ll literature is interactive," the Court concluded.6 Following arguments made by the respondent, it likened the California law to historical attempts to protect children from new media such as dime novels, movies, and comic books.7
Because the law did not target an unprotected category, the Court treated it as a content-based regulation and applied strict scrutiny.8 For a number of reasons, the law failed. First, in light of the mixed empirical evidence on the connection between violent video games and violent conduct, the State had argued that the Court should give deference to the legislature's conclusions about the connection. The Court refused to grant such deference and further expressed skepticism about the empirical basis for the legislature's conclusions.9
Second, the law was fatally underinclusive in that the studies supporting the law also showed correlations between violence and unregulated expression, such as Saturday morning cartoons and even images of guns.10 Finally, the Court rejected the State's interest in aiding parental authority. It found that the voluntary ratings system for video games enabled parental supervision and discouraged sales to minors, thereby diminishing the State's interest. It also found this rationale overinclusive, because some parents would be unconcerned about violent video games and thus would not require the State's aid.11
Justice Alito, joined by the Chief Justice, concurred in the judgment. He concluded that the California law was fatally vague but reserved the possibility that a clearer regulation should pass muster. He argued that the majority was wrong to reject the possibility that video games could be qualitatively different from other media in their capacity to cause harm.12
Justice Thomas and Justice Breyer each wrote a dissent.13 Justice Breyer agreed with the majority that the law was a content-based regulation but parted ways at the scrutiny stage, where he thought the law should pass. He took the majority to task for downplaying both the State's interest in protecting minors and the extent to which the Court's precedents supported that interest. He concluded that its proper recognition should lead the Court to defer to the state.14