Brown v. Entertainment Merchants Association

564 U.S. 786 (2011)

Quick Summary

Edmund G. Brown, Jr., Governor of California (defendant), and the Entertainment Merchants Association (plaintiff) were at odds over a California law restricting sales of violent video games to minors. The plaintiffs argued this infringed on First Amendment rights.

The central issue was whether this legislation violated free speech protections. Ultimately, the Supreme Court held that the law was unconstitutional because it did not fit within any established category of unprotected speech and failed to meet strict scrutiny requirements, thus siding with the video game industry’s right to free expression.

Facts of the Case

A legal dispute emerged between the state of California, represented by Governor Edmund G. Brown, Jr. (defendant), and the Entertainment Merchants Association (plaintiff), a group advocating for the video game industry. The contention centered around a California state law that banned the sale or rental of violent video games to minors.

This law specifically targeted games that allowed players to engage in acts of violence against images of human beings and lacked what was deemed as serious literary, artistic, political, or scientific value for minors.

The plaintiffs challenged this law on the grounds that it violated the First Amendment’s free speech clause. The district court agreed with the plaintiffs, finding the law unconstitutional. The defendants appealed, but the Ninth Circuit Court of Appeals upheld the lower court’s decision. This led to the case being brought before the U.S. Supreme Court to resolve the matter at the federal level.

Procedural Posture and History

  1. The Entertainment Merchants Association (plaintiff) filed a lawsuit challenging the constitutionality of a California law restricting violent video games.
  2. The district court ruled in favor of the plaintiffs, declaring the statute unconstitutional.
  3. The Ninth Circuit Court of Appeals affirmed the district court’s decision.
  4. The case was then appealed to the U.S. Supreme Court.

I.R.A.C. Format


Whether a California law prohibiting the sale or rental of violent video games to minors violates the First Amendment.

Rule of Law

Video games, like other forms of media, are entitled to First Amendment protections. The government cannot restrict expression based on its content unless it falls within a narrowly defined category of unprotected speech, such as obscenity or incitement. Any new category of unprotected speech must be firmly rooted in a long-standing tradition of restriction and must be justified by a compelling government interest that is narrowly tailored to achieve that interest.

Reasoning and Analysis

The Supreme Court recognized that video games are a form of expression that resembles other mediums like books or films that are protected under the First Amendment. The Court emphasized that new forms of media are subject to the same constitutional principles as older ones.

The law in question did not align with any traditionally recognized category of unprotected speech, such as obscenity, which is not applicable to depictions of violence. The State’s evidence suggesting a link between violent video games and aggression in minors was deemed not compelling and insufficient to meet the strict scrutiny standard.

The Court noted that any potential effects were minor and indistinguishable from those caused by other media types. Furthermore, the legislation’s underinclusive nature—failing to address other sources of similar content—cast doubt on whether the State was genuinely addressing an actual problem or targeting a specific speaker.


The Supreme Court affirmed the judgment of the Ninth Circuit, concluding that the California law does not comply with the First Amendment and thus cannot be enforced.

Key Takeaways

  1. Video games are protected under the First Amendment similar to other forms of media.
  2. States cannot create new categories of unprotected speech without a historical basis for doing so.
  3. Legislation must pass strict scrutiny to justify content-based restrictions on speech, requiring a compelling government interest and narrow tailoring.

Relevant FAQs of this case

When is content-based regulation of speech permissible under the First Amendment?

Content-based regulation of speech is permissible when it serves a compelling state interest and is narrowly tailored to achieve that interest without restricting more speech than necessary. Additionally, such regulations must pass strict scrutiny.

  • For example: A law that prohibits making false statements about the safety of vaccines during a public health crisis could be seen as permissible if it directly aims to prevent widespread panic and is limited only to false factual statements, not opinions or critiques.

What distinguishes obscenity from protected forms of speech under the First Amendment?

Obscenity is not protected by the First Amendment if it meets the three-pronged Miller test: (1) it appeals to the prurient interest as defined by community standards; (2) it depicts or describes, in a patently offensive way, sexual conduct specifically outlined by applicable state law; and (3) it lacks serious literary, artistic, political, or scientific value.

  • For example: A book with graphic descriptions of sexual acts designed solely for sexual arousal, without any narrative or artistic value, might be considered obscene and subject to regulation.

How does the government's interest in protecting children influence its ability to regulate speech?

The government has a recognized compelling interest in protecting children which can justify certain content-based regulations. However, these regulations still must be narrowly tailored and use the least restrictive means to protect minors.

  • For example: Imposing age verification requirements for accessing pornography online might be considered a justified regulation focused on protecting minors while allowing adults free access.


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