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E-Alert Case Updates

‘Game Over’ for Violent Video Game Critics

Brown v. Entertainment Merchants Association
No. 08–1448 (U.S. 2011)

by Imran O. Shaukat, Summer Associate
Semmes, Bowen & Semmes (

In this recent case, the Supreme Court of the United States held that video games were entitled to First Amendment protection. Specifically, the Court concluded that California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§ 1746–1746.5 (West 2009) (the “Act”), which prohibited the sale or rental of violent video games to minors, was a content-based restriction on speech that could not survive strict scrutiny.

Entertainment Merchants Association (“EMS”), representing the video game and software industries, brought a pre-enforcement challenge to the Act in Federal District Court. EMS argued that the Act violated the First Amendment. The Federal District Court agreed and permanently enjoined the Act’s enforcement. The Court of Appeals for the Ninth Circuit affirmed.

On appeal, the Supreme Court recognized that video games, though a new and different form of medium, communicate ideas. By communicating ideas, video games were protected speech. To impose a restriction on the content of protected speech, the State had to establish that the Act was: (1) justified by a compelling government interest, and (2) narrowly drawn to serve that interest. R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992).

The Court found that the State had a compelling government interest in: (1) protecting children from harm, and (2) helping concerned parents control their children. To satisfy strict scrutiny, however, the Act could not be underinclusive or overinclusive. The Court determined that the Act was underinclusive because the State declined to restrict other media, such as Saturday morning cartoons, which produce the same effects as violent video games. Next, the Court determined that the Act was overinclusive because not all parents disapproved of their children playing violent video games. Although the State had a compelling government interest, the Act was not narrowly tailored to serve that interest. Accordingly, the Supreme Court affirmed the judgment of the District Court and the Ninth Circuit.