[OBJECTION!] ‘Brown v. EMA’ – A Compelling Government Interest

“OBJECTION!” is a column analyzing the legal issues that affect our beloved nerd culture. In this first article, Jay Imhoff analyzes the Supreme Court decision that just ruled California Assembly Bill 1179 unconstitutional.

The Supreme Court has brought down the judicial hammer on the California’s Violent Video Games statute, and your Open the Fridge legal analyst is here to provide you the nitty-gritty. While the result of Brown v. Entertainment Merchants Association is indeed a big win for video games as an industry and art form, in terms of a legal decision this is not all that surprising.

Readers might not fully grasp the legal significance of the First Amendment. The Court is extremely skeptical of any law that, on its face, restricts speech. In legal parlance, these are known as “content-based” restrictions. The Court reviews content-based restrictions with the strictest of scrutiny by the courts. That means that, before any logical or legal analysis takes place, the law is presumed unconstitutional. This is not simply an uphill battle; this is climbing the Rocky Mountains with your legs tied together. And you are slathered in honey. There are bears. If you are the government, basically you don’t ever want one of your statutes facing strict scrutiny by the Supreme Court, because it is all but certain to be struck down. There are some exceptions to this rule, such as obscenity, but they are pretty narrow. (For example, obscenity only covers “depictions of sexual conduct.”)

Interestingly, California never contested that video games qualify for First Amendment protection. No doubt they figured that would be an impossible battle all its own; considering the milieu of expression that qualifies, it would be a very unreasonable argument to make. The Supreme Court is pretty loathe to judge the artistic merits of just about anything. (“esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”) Governments don’t get to regulate expression simply because the majority doesn’t like it. And the Court will ensure that they don’t.

Specifically, the government must create a law that regulates 1) “a compelling government interest,” 2) “that is narrowly tailored to that interest.” You are probably asking yourself, “What the hell does that mean?” And my answer would be, “It depends.” Basically, think of it as the two hurdles which the government must surmount to qualify for constitutionality under the First Amendment. First, the purpose of the regulation has to pretty damn important. Protecting children? That’s pretty important, and would usually qualify as a compelling interest. Then, in order to meet the second part of the test, the government has to restrict the speech narrowly, so that it is not so broad that other expression might be included in the regulation. The best example is probably the shrink-wrapped Playboys and Hustlers in the back of the 7-11 that you tried to get your grubby teenage hands on. That there’s the gubmint keepin’ you from seein’ those! In that case, they have a “compelling interest” in protecting you from the content (protecting kids), and the regulation (shrinkwrapping the magazines) is “narrowly tailored” to that particular interest and doesn’t encompass too much other speech.

But there are a number of problems with California’s law. For starters, violence does not fall within the obscenity exception to First Amendment protection. So they already have that working against them. Second, the Government thought that it could “create a wholly new category of content-based regulation that is permissible only for speech directed at children.” The Court resoundingly rejected this distinction. With the exception of some “narrow and well-defined circumstances,” minors are entitled to First Amendment protection as much as anyone else. While it acknowledged that California has a compelling interest in protecting children, it also pointed out that history and tradition stand against the State in regarding to protecting children against violent media. Grimm’s Fairy Tales, Greek mythology, Dante’s Inferno, Lord of the Flies–all those and more depict vivid violence, and there is a long history of providing such literature in American schools.

Perhaps most interesting of all, Justice Scalia brushed aside the argument that the interactive nature of video games changes the way in which children experience the violence. Quoting Judge Posner from the Seventh Circuit, the Court noted that “the better [literature] 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.”

As I see it, there are a few major takeaways from this opinion. First, video games constitute expression protected by the First Amendment. Second, violence does not qualify for the constitutional definition of obscenity exception under the First Amendment. Finally, video games are not constitutionally different expressions than other kinds of media.

But Scalia’s opinion only received a plurality of the vote; Justice Alito and Chief Justice Roberts concurred, but only in striking down the California law. They would have held that it was unconstitutionally vague, which would in turn leave the door open for other legislators to draw much narrower laws to protect children from interaction with violent video games.

The plurality draws hard lines, but the concurrence leaves some wiggle room for elected lawmakers to try something different. It makes me think that we will revisit this issue in some form or fashion in the future. While EMA shuts the door pretty hard in the face of state and federal lawmakers’ ability to regulate violent video games, I can’t help but wonder if perhaps some future actor will be able to pick the lock to reopen this issue.


Jay Imhoff is a law student by day and a card-carrying geek by night.  He loves all kinds of music, novels of any kind, graphic or otherwise, and soft, downy pillow that is a good RPG.  You can find him here on the Fridge, the Fridgecast, and his own observational blog, One Thousand Loaded Pistols.

Written by: Jay Imhoff

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