Supreme Court Protects First Amendment Rights of Minors, Refuses to Carve Out New Exception to Free Speech

Today the Supreme Court held in Brown v. Electronic Merchants Association the First Amendment rights of minors to access expressive works will be protected from government restriction without proof that the content is seriously harmful and the restriction is narrowly drawn, and violent content is no exception.

California enacted a law restricting the sale of violent video games to minors. A group of video game manufacturers, distributers, and others challenged the law as a violation of the First Amendment. All parties acknowledged that video games qualify as speech, just like classic literature, comic books, movies, and television, all of which have been known to contain graphic depictions of violence. While certain types of speech, like obscenity, are historically unprotected by the First Amendment, California argued for a new exception for the transmission of offensively violent speech to minors.

The majority, which crossed the usual conservative/liberal lines on the Court, held that no new exceptions should be created, and therefore any attempt to regulate speech based on content must be subjected to the strictest judicial scrutiny. Although California advanced the laudable goal of protecting children’s development, it offered insufficient evidence that violent video games actually caused harm serious enough to warrant government restriction. As Justice Scalia noted, “there are all sorts of problems – some of them surely more serious that this one – that cannot be addressed by governmental restriction of free expression[.]” Even if the state could legitimately attack the slight harms associated with video games, the ban on sales was both overinclusive and underinclusive. Saturday morning cartoons and mere pictures of guns have been shown to have similar psychological effects, but were unaffected by the ban. The ban also allowed children with any consenting adult present to access the allegedly harmful material, but prohibited access by minors with consenting parents who weren’t actually present at the time of purchase. Content-based restrictions on speech that, like this law, are not narrowly tailored to the specific problem identified fail to meet the standard of strict scrutiny.

Justice Alito wrote separately to say that he believed the law was unconstitutionally vague in defining what games were restricted, but expressed concern, without deciding, that the interactivity and extreme content of some video games could warrant some government restrictions. Justice Thomas dissented on the belief that the “founding generation” did not understand the First Amendment as extending to minors. Justice Breyer dissented on the grounds that the potential harm to children was substantial enough and the restriction was slight enough to satisfy strict scrutiny.

With this decision, the Court has reaffirmed that the government may not limit the right of any person to access expressive works simply because they are shocking or offensive, but only when there is demonstrated harm and the restriction narrowly addresses that harm.