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U.S. Supreme Court Gives Green Light to Selling and Renting Violent Video Games to Minors, Cites First Amendment Rights

(Slip Opinion)      OCTOBER TERM, 2010     Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 08-1448. Argued November 2, 2010-Decided June 27, 2011

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2-18.

(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech . . . do not vary" with a newand different communication medium. Joseph Burstyn, Inc. v. Wil-son, 343 U. S. 495, 503. The most basic principle-that governmentlacks the power to restrict expression because of its message, ideas,subject matter, or content, Ashcroft v. American Civil Liberties Un-ion, 535 U. S. 564, 573-is subject to a few limited exceptions for his-torically unprotected speech, such as obscenity, incitement, and fight-ing words. But a legislature cannot create new categories ofunprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, Cali-fornia's Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults isnot uncritically applied to children. Instead, the State wishes to create a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and That is unprecedented and mistaken. This country has no tradition of specially restricting chil-dren’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the playerparticipates in the violent action on screen and determines its out-come, is unpersuasive. Pp. 2–11.

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