Not New Enough: Brown v. EMA

Last Monday, the final day of this year’s docket, the Supreme Court struck down a California law prohibiting the sale of violent videogames to minors in Brown v. Entertainment Merchants Association. It’s a landmark case that clearly establishes electronic games as protected speech, regardless of their violent content. With the threat of $1,000 fines for retailers and government-mandated labeling lifted, it’s a reason for both gamers and those in the industry to celebrate. I’ve been following this case since its District Court days, and last week I published a thesis, “Electronic Games and the First Amendment,” dealing with this case and similar issues. Here’s what the case means for gamers.

The law and the story so far

This started with a 2005 California state law sponsored by State Senator Leland Yee. AB 1179 prohibited the sale of violent videogames to minors, borrowing “precise” terminology from violent crime statutes and adapting the three-pronged obscenity test from Miller v. California (1973). It also required labeling that stated the game was unsuitable for those under 18. 

Essentially, California lawmakers sought to expand the definition of obscenity, normally restricted to sexually explicit material, to include graphic violence. Because obscenity is an area of speech not protected by the First Amendment, if such graphic violence is accepted as obscenity, lawmakers would have a great deal of leeway in regulating violent videogames. If violent videogames are protected by the First Amendment, the statute must meet the standard of strict scrutiny: the law must address a compelling government interest, it must be narrowly tailored, and it must use the least-restrictive means to achieve its goal. Strict scrutiny is a difficult standard to meet, and statutes subject to it are rarely found constitutional; California relied heavily on the violent effects research of Dr. Craig Anderson to meet that standard. Dr. Anderson’s work has been roundly criticized and has failed to meet strict scrutiny in numerous previous cases.

Just before the law went into effect, the Northern District of California District Court issued an injunction to block its enforcement. The District Court later ruled in favor of the Video Software Dealer’s Association and the Entertainment Software Association, declaring the law unconstitutional. The Ninth Circuit came to a similar conclusion in VSDA v. Schwarzenegger (CA9 2009). This was in line with previous Circuit Court decisions, mostly notably Judge Richard Posner’s American Amusement Machine Association v. Kendrick (2001) opinion. Given the Circuit Court consensus, many worried that the Supreme Court would reverse course on videogames as protected speech after granting cert to the case. By the time a decision was issued, the VSDA changed its name to the Electronic Merchants Association and Jerry Brown, previously the Attorney General in the case, replaced Arnold as Governor of California, meaning it goes down in the books as Brown v. EMA.

But isn’t it already illegal to sell violent videogames to kids?

Many gamers (and parents of gamers!) were confused by this case– since major retailers refuse to sell games to minors, many people assume the practice is already illegal. However, this prohibition is completely voluntary and established by the electronic game industry—albeit under pressure from Senators Herb Kohl, Joseph Lieberman, and others involved in Senate subcommittee hearings in the mid 1990s. Virtually every electronic game available via mainstream retail channels is vetted by the Electronic Software Rating Board, which assigns an age-based rating according to the amount and variety of objectionable material (sex, violence, cursing, and so on). The American film industry is self-regulated on a similar model with the familiar ratings of G, PG, R, etc. Neither of these systems is enforced with jail time or civil penalties, as is the sale of alcohol, tobacco, or pornography, for example. The California law at issue in the case would have made the regulation of videogames more like alcohol and tobacco and less like the movie industry.

The decision

Justice Scalia wrote the majority opinion of the case, joined by four Justices in whole (Kennedy, Ginsburg, Sotomayor, and Kagan), with Alito and Chief Justice Roberts concurring. Thomas and Breyer wrote separate dissents. Many outlets have reported this as a 7-2 decision in favor of electronic games—on the question of whether or not this particular law is constitutional, I’d say that’s correct. But Alito and Roberts are a little more reserved on whether violent videogames can be regulated without disturbing the First Amendment—by that criterion, the case is closer to 5-4.

The full text of the decision is available here, and the majority opinion in particular is a good read even if you’re not a constitutional law scholar. Scalia begins by affirming that videogames qualify for First Amendment protection. He brings out a laundry list of free speech cases establishing that free speech protections apply to new media (Joseph Burstyn, Inc. v. Wilson), that the government has no business making moral or aesthetic judgments about speech (U.S. v. Playboyand that there are historical areas of speech not protected by the First Amendment (Chaplinsky v. New Hampshire, Roth v. United States). One of the most important cases in the opinion is U.S. v. Stevens, which ruled that videos of animals being tortured and killed were protected by the First Amendment, and most vitally, that the Supreme Court would not “carve out” any new areas of speech that would not receive First Amendment protection. That decision was 8-1, with only Justice Alito dissenting.

By ruling that the precedent established in Stevens applies to this case, Scalia affirms that the government cannot use a balancing test to weigh the interest in protecting children versus the potential harm of the legislation, abridging free speech. He notes that the government’s argument attempts to make violence obscene only for children, and then rejects restricting the free speech rights of minors by citing Erznoznik v. Jackonsville. Brown v. EMA may prove to be even more influential for its ringing endorsement of the First Amendment rights of children than for its declaration of electronic games as free speech.

Brown v. EMA may prove to be even more influential for its ringing endorsement of the First Amendment rights of children than for its declaration of electronic games as free speech.

Scalia’s opinion then embarks on an extended tribute to Posner’s decision in Kendrick (the first to unequivocally declare videogames speech)essentially rehashing the same examples of violent classic literature and its prominent place in children’s culture. This serves to demonstrate that not only are violent media not a traditionally restricted area of speech, they are in fact a traditional part of American childhood. Also echoing Posner, Scalia argues that all successful media are interactive insofar as they engage their audience; thus electronic games are not uniquely affective and should not be uniquely regulated.

If electronic games have to follow the same rules as any other media, that means California has to meet strict scrutiny for the statute to be held constitutional. Scalia rules that “California cannot meet that standard.” The Court roundly rejects the research championed by Dr. Craig Anderson—no surprise, since every lower court to consider the same evidence has come to the same conclusion. This research does not claim to show a causal relationship between videogames and violence; nor is it entirely clear how the measures of aggression used in the relevant studies relate to actual aggression or violent behavior. Scalia also takes issue with the special treatment proposed for videogames, noting that there has been no justification for regulation of games without similar regulation (and age-based prohibition) for film, books, comic books, or other media with violent content. He suggests that allowing the games to be purchased with parental consent proves they are not immediately dangerous to children, or parental consent would not suffice to protect children from truly dangerous and harmful material. The ESRB’s rating system is given as proof that other methods exist to restrict access to minors without having the government get involved.

In short, it’s about as warm a welcome of electronic games into the protective embrace of the First Amendment as gamers could ask for. But characteristic sniping in the footnotes of the majority opinion reveal some tensions in the court.

The other side(s)

Justice Samuel Alito, the sole dissent in U.S. v. Stevens, wrote a concurring opinion for the case, meaning he agreed with the decision the Court arrived at, but not the reasoning it used to get there. He was joined by Chief Justice Roberts. Basically, Alito and Roberts would have narrowly focused on the imprecise language used to define violent games to find the law unconstitutional and avoided making a decision about the broader issues raised in the case. The concurring opinion suggests that legislation precise enough about what constitutes a violent game might pass constitutional muster. If legislators attempt new electronic game censorship bills, they will likely look to this opinion for guidance. By Alito’s reading, Stevens does not require laws like the California statute to meet strict scrutiny.

One of the most remarkable things about the Alito concurrence is his reliance on sources like, Kill Screen, and Popular Mechanics—especially since one of those sources is a dated article about how videogames may soon be in 3D. I guess no one on the Supreme Court has a Nintendo 3DS yet? Maybe they could start settling their issues with some 3D Super Street Fighter IV rather than publicly bashing each other in the footnotes. I personally question Roberts’ support for Alito’s position: it seems incoherent with what he wrote for the majority opinion in U.S. v. Stevens, that previous willingness to consider regulating protected speech “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” In oral arguments, the Chief Justice did seem particularly incensed by Postal, so maybe he isn’t thinking entirely straight on this issue.

If this case had gone the other way, the consequences for the industry could have been ruinous and electronic games may have been relegated to niche status, like the comic-book industry is today.

In his dissent, Justice Thomas weighs in with a radical rethinking of the First Amendment rights of children—that is, they don’t have any unless their parents say they do. This is an originalist reading that would require demolishing precedent like Erznoznik. Because it represents a radical departure from precedent and receives little attention in the majority opinion, I don’t see much reason this position would get a reaction from the other justices much beyond “Cool story, bro,” and is of more interest to those studying originalist conceptions of the rights of minors than game law. If you were worried about getting through a Supreme Court case without having to hear about Locke and Rousseau, this is the section for you!

Justice Breyer’s dissent sees the California regulation not as an attempt to create a new area of unprotected speech, but as an acceptable use of the power to protect children. Breyer relies heavily on Ginsberg v. New York (1968), a case which upheld a statute that prohibited minors from purchasing “girlie magazines”—that is, sexually charged material that was not obscene for adults, but deemed inappropriate for children. Breyer proposes that violent videogames could function in much the same way, and dismiss Alito’s concerns about vagueness. Breyer’s takes particular comfort in the fact that any violent videogame controlled by the legislation, no matter how despicable its content, can be saved from regulation by a provision in the Miller test, which California has here adopted, for material with serious literary, artistic, political, or scientific value. Even this dissent has good news for gamers, however. Breyer states: “… videogames also embody important expressive and artistic elements, [and] I agree with the Court that the First Amendment significantly limits the State’s power to regulate.”

However, Breyer finds the evidence presented by California far more compelling than Scalia, even capable of meeting the standard of strict scrutiny. Like Alito, Breyer believes electronic games are different from other media due to their interactivity, and thus should be evaluated differently. For those familiar with the research, some of Breyer’s claims are baffling, especially that social scientists have found causal (emphasis in original) evidence that playing violent games causes harm. As proof, he weakly offers that researchers have found that “increased exposure to violent videogames causes increase in aggression” and other findings by the same set of researchers repeatedly rejected by the lower courts. This is not a causal mechanism or claim. The various statements by the assorted American Associations and Academies of medical science are political, not medical or scientific, positions taken by their members and are given undue weight in this dissent. I think Breyer has moved beyond his expertise in judging the social science evidence and gotten it wrong—I refer readers to the excellent Grand Theft Childhood or Dmitri Williams’ testimony before the Senate Subcommittee for a more thorough understanding of why the social science on direct effects in videogame violence leaves a lot to be desired.


So how does this impact the games industry? The ESRB already does a pretty good job of keeping violent videogames out of the hands of minors. Maybe the industry will have slightly less incentive to abide by ESRB guidelines without the threat of legislation, but I think the ESRB makes good business sense to most retailers and publishers. By placating parents worried about violence and hopefully stopping public controversy before it starts, the ESRB can add a lot of value for publishers and designers.

The biggest impact of the decision is that things can continue to proceed as normal, with electronic games an accepted part of the mainstream, even if there is some lingering stigma. If this case had gone the other way, the consequences for the industry could have been ruinous and electronic games may have been relegated to niche status, like the comic-book industry is today.

I think the concurring opinion and the dissents are too different from one another to represent a viable coalition to overturn this ruling. Significant advances in the state of social science research on violent media would have to take place to get five Justices to consider the evidence on violent videogames harming minors up to strict scrutiny snuff. I’m sure legislatures will try to conform new efforts to Alito’s guidelines, but I don’t think they’ll have any success short of a drastic reconfiguration in the Court.

The problem

Don’t get me wrong; Brown v. EMA is great news for people who care about gaming and the law. But isn’t it a little late? Since Kendrick in 2001, there has been a fairly broad consensus that electronic games are part of the First Amendment (not that lawmakers were discouraged from passing blatantly unconstitutional laws anyway). In many ways, Brown v. EMA is very similar to Burstyn v. Wilson, the 1952 case that established film as a protected medium. It protects the medium, but only after it’s become a major force in popular culture. This largely defeats the anti-majoritarian goals of the First Amendment.

Until the Supreme Court clearly defines “speech”, media will only be protected by the First Amendment when they have won popular acceptance.

Electronic games weren’t so lucky in the earliest cases of censorship. In trial court cases like America’s Best Family Showplace Corporation v. City of New York Department of Buildings (1982) and Caswell v. Licensing Commission for Brockton (1983), electronic games weren’t considered speech at all, and thus weren’t given any kind of First Amendment protection. In the early days of the medium, before major corporations entered the industry, widespread public acceptance, massive economic impact, and industry lobbying organizations, electronic games were denied protection as speech. Because the Supreme Court has not laid out a clear definition of speech, judges in lower courts could basically make up whatever definition they wanted—one that, of course, excluded newfangled electronic games.

Until the Supreme Court clearly defines “speech,” media will only be protected by the First Amendment when they have won popular acceptance. In the majority opinion, Scalia writes: “Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.” I believe that our current system allows speech itself to be defined by the prejudices and opinions assigned to a medium, rather than its objective capabilities, and new media will be vulnerable to censorship for as long as that’s the case.

Thomas Rousse knows about this stuff ’cause he wrote a thesis on Electronic Games and the First Amendment. He graduated from Northwestern University in 2010 and will be studying videogames in Copenhagen next year. You might want to keep an eye on him at

Illustration by Daniel Purvis