Video Games Afforded Free Speech

The Supreme Court of the United States recently granted First-Amendment protection to content in video games in a 7-2 ruling.1  The video game industry challenged a California statute prohibiting the sale or rental of video games depicting violence.2  The statute specifically prohibited the sale or rental of games:

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 suit- able for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.3

The violation of the statute was punishable by a fine up to $1,000.4  The lower courts found that the California law violated the First Amendment and enjoined its application.5

The courts until this point have found narrow exceptions to limit First Amendment protections.6  The Court followed suit, and noted that California does not have a history of protecting its children from the types of material the law targeted.7  The Court viewed this lack of history as prohibiting the restriction of the First Amendment.8

Further, the Court objected to Justice Alito’s concurrence in judgment, stating in pertinent part:

Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. . . . [I]ronically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.9

Concluding, the Court made clear that the California statute failed to pass strict scrutiny muster on all accounts.10  Not only was the law viewed as underinclusive for the medium,11 the Court also found the statute to be overinclusive in terms of aiding parental authority, stating “[n]ot all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games.”12  Rather than clamping down on First Amendment rights, the Court chose to deign to the self-policing video game industry.13

Although the Court granted First Amendment protection to video game content, and thus sale and rental of video games to minors without penalty, there is an increasing need to protect children from interactive content.  As the California statute’s drafter, Leland Yee, noted last year:

This is not about Leland Yee trying to prevent any of you game [developers] from developing any more atrocious kinds of games.  This is a free society. If you have the imagination to do something even more horrible with the technology, then God bless you. That’s part of our freedom of expression here in America, but you just have to figure out when it’s appropriate and when it’s not appropriate. For me, as a child psychologist you ought not be doing it for kids.14

Even Justice Kagan, who voted to strike down the California law, was unsure of her vote:

It was the case where I struggled most and thought most often I’m on the wrong side of it.  You could see why the government would have wanted to do this and you can see the kind of danger it was worried about, the kind of effects these extremely violent video games have on young people.  But I couldn’t figure out how to square that with our First Amendment precedence and precedence is very important to me.15

The Supreme Court clearly puts the onus on parents to familiarize themselves with the video game industry rating system to monitor their children’s video game content intake.  As entertainment mediums evolve into more lifelike interactions, so will the need to reevaluate the ability to limit First Amendment protection of all mediums.  It is not hard to imagine video games soon taking three-dimensional shape in the majority of living rooms across the country with the proliferation of three-dimensional television sets.  Perhaps this Court will be asked to reevaluate their decision based upon such an evolved, even more interactive medium in the near future and it will be interesting to see if the Court decides the issue in the same manner.  On the flip side, much more research needs to be conducted in order to aid child-protection proponents in building a case that may overcome strict scrutiny analysis.


1 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011).

2 Cal. Civ. Code Ann. §§ 1746-1746.5 (West 2009).

3 Brown, 131 S. Ct. at 2732-2733 (quoting Cal. Civ. Code Ann. §1746(d)(1)(A)).

4 Cal. Civ. Code Ann. §1746.3.

5 Video Software Dealers Assn. v. Schwarzenegger, No. C-05-04188 RMW, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal. Aug. 6, 2007).  Video Software Dealers Assn. v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) (affirming lower court decision).

6 See, Roth v. United States, 354 U. S. 476, 483 (1957) (limiting obscenity); Brandenburg v. Ohio, 395 U.S. 444, 447–449 (1969) (per curiam) (limiting incitement); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (limiting fighting words).

7 Brown, 131 S. Ct. at 2736-2737.

8 Id.

9 Id. at 2738.

10 Id. at 2738-2739.

11 Id. at 2740.

12 Id. at 2741.

13 Id. at 2740-2741.

14 Posting of Stephen Totilo to Kotaku, (Apr. 26, 2010, 6:40 pm EST).

15 Carolyn Sackariason, Kagan reflects on first year as Supreme Court justice, Aspen Daily News, August 3, 2011, available at

Author: Randy Gray

Randy Gray is the Editor-in-Chief of the Rutgers Computer & Technology Law Journal and is a third-year student at Rutgers School of Law – Newark. He graduated from Wake Forest University with Bachelor of Arts in Political Science and English. Gray has worked as Law Clerk for the New Jersey Attorney General’s in the Division of Youth & Family Services (DYFS) – North, and has served as a Fellow in the Essex County Prosecutor’s Office Cyber Crimes Unit as a part of the Cybersecurity Project. Before entering law school, Gray worked as a staffer for Senate Majority Leader Harry Reid as a member of the Senate Democratic Communications Center press team, and as a digital communications specialist at Emanate, a public relations firm. In his free time, Gray enjoys traveling with his wife.

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