Brown v. Entertainment Merchants Association, 564 U.S. 768 [2011]

Brown v. Entertainment Merchants Association, 564 U.S. 768 [2011]

United States of America

Supreme Court of the United States

Argued November 2, 2010, Decided June 27, 2011

Youth Protection Law

A California law prohibiting the sale or rental of violent video games to minors violated the First Amendment. It observed that “government has no power to restrict expression because of its message, its ideas, its subject matter or its content” with a few limited exceptions to the Free Speech Clause under the First Amendment.

“California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously under-inclusive nor seriously over-inclusive. (…) As a means of protecting children from portrayals of violence, the legislation is seriously under-inclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously over-inclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the under-breadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.”