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08-1448 Brown v. Entertainment Merchants Association

By: WISCONSIN LAW JOURNAL STAFF//June 27, 2011//

08-1448 Brown v. Entertainment Merchants Association

By: WISCONSIN LAW JOURNAL STAFF//June 27, 2011//

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Constitutional Law
Freedom of speech; video games

A state law restricting the sale or rental of violent video games to minors does not comport with the First Amendment.
Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so. The Act cannot satisfy strict scrutiny.

556 F. 3d 950, affirmed.

08-1448 Brown v. Entertainment Merchants Association

Scalia, J.; Thomas, J., dissenting; Breyer, J., dissenting.

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