564 U.S. 786, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011).
In 2005, the California Legislature enacted Assembly Bill 1179, which added sections 1746 through 1746.5 to the Civil Code.1
The statute prohibits the sale or rental of violent video games to minors and requires their packaging to be labeled "18."2
A violent video game is defined as one in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in a manner that a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors, that is patently offensive to prevailing standards in the community as to what is suitable for minors, and that causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
Violation of the Act is punishable by a civil fine of up to one thousand dollars.3
Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the United States District Court for the Northern District of California.4
The district court concluded that the Act violated the First Amendment and permanently enjoined its enforcement.5
The Court of Appeals for the Ninth Circuit affirmed the district court's judgment.6
The Supreme Court granted certiorari to review the case.7
Whether video games qualify for First Amendment protection?8
Video games communicate ideas through characters, dialogue, plot, music, and interactive features, and like books, plays, and movies they are entitled to First Amendment protection because the basic principles of free speech do not vary with new media.9
Yes. The California statute regulates the sale of video games that depict killing, maiming, dismembering, or sexually assaulting human images.10 The Court recognized that these games express ideas and social messages through familiar literary devices and distinctive interactive elements, placing them within the protection afforded to other expressive works.11
Video games are protected speech under the First Amendment.12
Whether the California statute creates a new category of unprotected speech for violent video games directed at minors?13
New categories of unprotected speech may not be created by legislative balancing of harm against value. Only categories with a longstanding historical tradition of regulation, such as obscenity limited to sexual conduct, fall outside First Amendment protection.14
No. California attempted to create a new category by adapting the Miller obscenity test to violent content for minors.15 No American tradition has specially restricted children's access to depictions of violence in literature, films, or other media.16 The statute therefore cannot be sustained as regulating unprotected speech.17
The California statute does not create a valid new category of unprotected speech.18
Related opinions on this issue
Justice Alito concurred in the judgment on vagueness grounds. He concluded that the statute's reliance on undefined community standards for what appeals to a deviant or morbid interest of minors and what is patently offensive fails to provide fair notice.19 The threshold requirement of killing or maiming does not narrow the statute as the hard-core limitation does in Miller.20
He would not reach the broader First Amendment question of whether a properly drawn statute could survive scrutiny.21
Whether a California law imposing restrictions on violent video games comports with the First Amendment?22
A content-based restriction on protected speech is invalid unless it survives strict scrutiny by being narrowly tailored to serve a compelling government interest. The state bears the burden of showing an actual problem and that the restriction is actually necessary to solve it.23
No. The Act is a content-based restriction because it singles out video games depicting violence that appeals to deviant interests of minors.2425 California could not demonstrate a direct causal link between such games and harm to minors. The studies relied upon showed only correlation and small effects indistinguishable from those of other media.26 The law is also underinclusive because it allows parents to purchase the games and leaves other violent media untouched.27
It is overinclusive because it restricts minors whose parents approve of the games.28
The California statute violates the First Amendment.29
Related opinions on this issue
Justice Thomas dissented. He argued that the original public understanding of the First Amendment did not include a right to speak to minors without parental consent.30 Drawing on founding-era views of parental authority, he concluded that the statute reinforces rather than abridges parental control and therefore does not facially violate the First Amendment.31
The founding generation expected parents to direct the proper development of their children and would not have considered restrictions on speech bypassing parents to be an abridgment of free speech.32
Justice Breyer dissented. He would have upheld the statute under Ginsberg because it advances the compelling interests of aiding parental authority and protecting minors' well-being.33 He found the evidence of harm from interactive violent games sufficient to satisfy strict scrutiny.34
The voluntary rating system left a significant enforcement gap that the statute addressed.35 In his view the statute imposes only a modest restriction justified by the state's interest in supplementing parental efforts to prevent children from purchasing potentially harmful material.36
Whether the California statute survives strict scrutiny as a content-based restriction on speech?37
To survive strict scrutiny a content-based law must be justified by a compelling interest and narrowly drawn. Underinclusiveness and overinclusiveness raise serious doubts about whether the government is pursuing the interest it invokes rather than disfavoring particular speech.38
No. California conceded it could not show a direct causal link and relied on predictive judgments from studies that courts had rejected for methodological flaws.3940 The law is underinclusive because it permits parental purchases and exempts other violent media.41 It is overinclusive because it prevents purchases by minors whose parents do not object.42 These defects show the statute is not narrowly tailored.43
The California statute does not survive strict scrutiny.44