Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Entertainment Merchants Association

June 27, 2011





Argued November 2, 2010

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2--18.

(a) Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And "the basic principles of freedom of speech . . . do not vary" with a new and different communication medium. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503. The most basic principle-that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, Ashcroft v. American Civil Liberties Union, The opinion of the court was delivered by: Justice Scalia

564 U. S. ____ (2011)

Opinion of the Court

We consider whether a California law imposing restrictions on violent video games comports with the First Amendment.


California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746--1746.5 (West 2009) (Act), prohibits the sale or rental of "violent video games" to minors, and requires their packaging to be labeled "18." The Act covers 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 suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." §1746(d)(1)(A). Violation of the Act is punishable by a civil fine of up to $1,000. §1746.3.

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. That court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. Video Software Dealers Assn. v. Schwarzenegger, No. C--05--04188 RMW (2007), App. to Pet. for Cert. 39a. The Court of Appeals affirmed, Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950 (CA9 2009), and we granted certiorari, 559 U. S. ____ (2010).


California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. "Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, "esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary" when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).

The most basic of those principles is this: "[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). There are of course exceptions. " 'From 1791 to the present,' . . . the First Amendment has 'permitted restrictions upon the content of speech in a few limited areas,' and has never 'include[d] a freedom to disregard these traditional limitations.' " United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 5) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382--383 (1992)). These limited areas-such as obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447--449 (1969) (per curiam), and fighting words, Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)-represent "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," id., at 571--572.

Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U. S. C. §48 (amended 2010). The statute covered depictions "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if that harm to the animal was illegal where the "the creation, sale, or possession t[ook] place," §48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California, 413 U. S. 15, 24 (1973), exempted depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value," §48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty-though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a "simple balancing test" that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Stevens, 559 U. S., at ___ (slip op., at 7). We emphatically rejected that "startling and dangerous" proposition. Ibid. "Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law." Id., at ___ (slip op., at 9). But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the "judgment [of] the American people," embodied in the First Amendment, "that the benefits of its restrictions on the Government outweigh the costs." Id., at ___ (slip op., at 7).

That holding controls this case.*fn1 As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of "sexual conduct," Miller, supra, at 24. See also Cohen v. California, 403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and rejected a State's attempt to shoehorn speech about violence into obscenity. In Winters, we considered a New York criminal statute "forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person," 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. "[T]here can be no more precise test of written indecency or obscenity," it said, "than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. " Id., at 514 (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest-balancing that we rejected in Stevens. Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U. S., at 517-- 519, made clear that violence is not part of the obscenity that the Constitution permits to be regulated. The speech reached by the statute contained "no indecency or obscenity in any sense heretofore known to the law." Id., at 519.

Because speech about violence is not obscene, it is of no consequence that California's statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.*fn2 We held that the legislature could "adjus[t] the definition of obscenity 'to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests . . .' of . . . minors. " Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502, 509 (1966)). And because "obscenity is not protected expression," the New York statute could be sustained so long as the legislature's judgment that the proscribed materials were harmful to children "was not irrational." 390 U. S., at 641.

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults-and it is wise not to, since that is but a hair's breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. "[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. Jacksonville, 422 U. S. 205, 212--213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg, supra, at 640--641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Erznoznik, supra, at 213--214.*fn3

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read-or read to them when they are younger-contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187--189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208--209 (1997 ed.).*fn4

This is not to say that minors' consumption of violent entertainment has never encountered resistance. In the 1800's, dime novels depicting crime and "penny dreadfuls" (named for their price and content) were blamed in some quarters for juvenile delinquency. See Brief for Cato Institute as Amicus Curiae 6--7. When motion pictures came along, they became the villains instead. "The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close. . . . They say that the moving picture machine . . . tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison." Moving Pictures as Helps to Crime, N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Institute, at 8. For a time, our Court did permit broad censorship of movies because of their capacity to be "used for evil," see Mutual Film Corp. v. Industrial Comm'n of Ohio, 236 U. S. 230, 242 (1915), but we eventually reversed course, Joseph Burstyn, Inc., 343 U. S., at 502; see also Erznoznik, supra, at 212--214 (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Brief for Cato Institute, at 10--11. Many in the late 1940's and early 1950's blamed comic books for fostering a "preoccupation with violence and horror" among the young, leading to a rising juvenile crime rate. See Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts to convince Congress to restrict comic books failed. Brief for Comic Book Legal Defense Fund as Amicus Curiae 11--15.*fn5 And, of course, after comic books came television and music lyrics.

California claims that video games present special problems because they are "interactive," in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugar-cane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. Cf. Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954, 957--958 (CA8 2003). As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. "[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own." American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001) (striking down a similar restriction on violent video games).

JUSTICE ALITO has done considerable independent research to identify, see post, at 14--15, nn. 13--18, video games in which "the violence is astounding," post, at 14. "Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools." Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us-but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO's description, post, at 14--15, of those video games he has discovered that have a racial or ethnic motive for their violence-" 'ethnic cleansing' [of] . . . African Americans, Latinos, or Jews." To what end does he relate this? Does it somehow increase the "aggressiveness" that California wishes to suppress? Who knows? But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message. Thus, ironically, 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.


Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny-that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V., 505 U. S., at 395. The State must specifically identify an "actual problem" in need of solving, Playboy, 529 U. S., at 822--823, and the curtailment of free speech must be actually necessary to the solution, see R. A. V., supra, at 395. That is a demanding standard. "It is rare that a regulation restricting speech because of its content will ever be permissible." Playboy, supra, at 818.

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather, relying upon our decision in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), the State claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies. But reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. Id., at 661--662. California's burden is much higher, and because it bears the risk of uncertainty, see Playboy, supra, at 816--817, ambiguous proof will not suffice.

The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,*fn6 and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.*fn7

Even taking for granted Dr. Anderson's conclusions that violent video games produce some effect on children's feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the "effect sizes" of children's exposure to violent video games are "about the same" as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated "E" (appropriate for all ages), id., at 1270, or even when they "vie[w] a picture of a gun," id., at 1315--1316.*fn8

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. See City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida Star v. B. J. F., 491 U. S. 524, 540 (1989). Here, California has singled out the purveyors of video games for disfavored treatment-at least when compared to booksellers, cartoonists, and movie producers-and has given no persuasive reason why.

The Act is also seriously underinclusive in another respect-and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it's OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child's or putative parent's, aunt's, or uncle's say-so suffices. That is not how one addresses a serious social problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that "only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors]." Erznoznik, 422 U. S., at 212--213.

But leaving that aside, California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10 (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only-18 and older). App. 86. The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults-only games to minors; and to rent or sell "M" rated games to minors only with parental consent. Id., at 47. In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, "the video game industry outpaces the movie and music industries" in "(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children's access to mature-rated products at retail." FTC, Report to Congress, Marketing Violent Entertainment to Children 30 (Dec. 2009), online at http:// (as visited June 24, 2011, and available in Clerk of Court's case file) (FTC Report). This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest.*fn9

And finally, the Act's purported aid to parental authority is vastly overinclusive. Not 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. While some of the legislation's effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to "assisting parents" that restriction of First Amendment rights requires.

California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them-concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a "well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," Chaplinsky, 315 U. S., at 571-- 572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.

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 underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, 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 overinclusive 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 underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

We affirm the judgment below.

It is so ordered.

JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, concurring in the judgment.

The California statute that is before us in this case represents a pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create. Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the Court that this particular law cannot be sustained.

I disagree, however, with the approach taken in the Court's opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

In the view of the Court, all those concerned about the effects of violent video games-federal and state legislators, educators, social scientists, and parents-are unduly fearful, for violent video games really present no serious problem. See ante, at 10--13, 15--16. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in "kind" from reading a description of violence in a work of literature. See ante, at 10--11.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.


Respondents in this case, representing the video-game industry, ask us to strike down the California law on two grounds: The broad ground adopted by the Court and the narrower ground that the law's definition of "violent video game," see Cal. Civ. Code Ann. §1746(d)(1)(A) (West 2009), is impermissibly vague. See Brief for Respondents 23--61. Because I agree with the latter argument, I see no need to reach the broader First Amendment issues addressed by the Court.*fn10


Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). The lack of such notice in a law that regulates expression "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno v. American Civil Liberties Union, 521 U. S. 844, 871--872 (1997). Vague laws force potential speakers to " 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Baggett v. Bullitt, 377 U. S. 360, 372 (1964) (quoting Speiser v. Randall, 357 U. S. 513, 526 (1958)). While "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity," Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989), "government may regulate in the area" of First Amendment freedoms "only with narrow specificity," NAACP v. Button, 371 U. S. 415, 433 (1963); see also Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). These principles apply to laws that regulate expression for the purpose of protecting children. See Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 689 (1968).

Here, the California law does not define "violent video games" with the "narrow specificity" that the Constitution demands. In an effort to avoid First Amendment problems, the California Legislature modeled its violent video game statute on the New York law that this Court upheld in Ginsberg v. New York, 390 U. S. 629 (1968)-a law that prohibited the sale of certain sexually related materials to minors, see id., at 631--633. But the California Legislature departed from the Ginsberg model in an important respect, and the legislature overlooked important differences between the materials falling within the scope of the two statutes.


The law at issue in Ginsberg prohibited the sale to minors of materials that were deemed "harmful to minors," and the law defined "harmful to minors" simply by adding the words "for minors" to each element of the definition of obscenity set out in what were then the Court's leading obscenity decisions, see Roth v. United States, 354 U. S. 476 (1957), and Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966).

Seeking to bring its violent video game law within the protection of Ginsberg, the California Legislature began with the obscenity test adopted in Miller v. California, 413 U. S. 15 (1973), a decision that revised the obscenity tests previously set out in Roth and Memoirs. The legislature then made certain modifications to accommodate the aim of the violent video game law.

Under Miller, an obscenity statute must contain a threshold limitation that restricts the statute's scope to specifically described "hard core" materials. See 413 U. S., at 23--25, 27. Materials that fall within this "hard core" category may be deemed to be obscene if three additional requirements are met:

(1) an "average person, applying contemporary community standards [must] find . . . the work, taken as a whole, appeals to the prurient interest";

(2) "the work [must] depic[t] or describ[e], in a patently offensive way, sexual conduct specifically defined by the applicable state law; and"

(3) "the work, taken as a whole, [must] lac[k] serious literary, artistic, political, or scientific value." Id., at 24 (internal quotation marks omitted).

Adapting these standards, the California law imposes the following threshold limitation: "[T]he range of options available to a player [must] includ[e] killing, maiming, dismembering, or sexually assaulting an image of a human being." §1746(d)(1). Any video game that meets this threshold test is subject to the law's restrictions if it also satisfies three further requirements:

"(i) A reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors.

"(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

"(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." §1746(d)(1)(A).*fn11


The first important difference between the Ginsberg law and the California violent video game statute concerns their respective threshold requirements. As noted, the Ginsberg law built upon the test for adult obscenity, and the current adult obscenity test, which was set out in Miller, requires an obscenity statute to contain a threshold limitation that restricts the statute's coverage to specifically defined "hard core" depictions. See 413 U. S., at 23--25, 27. The Miller Court gave as an example a statute that applies to only "[p]atently offensive representations or descriptions of ultimate sexual acts," "masturbation, excretory functions, and lewd exhibition of the genitals." Id., at 25. The Miller Court clearly viewed this threshold limitation as serving a vital notice function. "We are satisfied," the Court wrote, "that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution." Id., at 27; see also Reno, supra, at 873 (observing that Miller's threshold limitation "reduces the vagueness inherent in the open-ended term 'patently offensive' ").*fn12

By contrast, the threshold requirement of the California law does not perform the narrowing function served by the limitation in Miller. At least when Miller was decided, depictions of "hard core" sexual conduct were not a common feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the California law. It provides that a video game cannot qualify as "violent" unless "the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." §1746(d)(1).

For better or worse, our society has long regarded many depictions of killing and maiming*fn13 as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law's threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions.

Because of this feature of the California law's threshold test, the work of providing fair notice is left in large part to the three requirements that follow, but those elements are also not up to the task. In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature relied on undefined societal or community standards.

One of the three elements at issue here refers expressly to "prevailing standards in the community as to what is suitable for minors." §1746(d)(1)(A)(ii). Another element points in the same direction, asking whether "[a] reasonable person, considering [a] game as a whole," would find that it "appeals to a deviant or morbid interest of minors." §1746(d)(1)(A)(i) (emphasis added).

The terms "deviant" and "morbid" are not defined in the statute, and California offers no reason to think that its courts would give the terms anything other than their ordinary meaning. See Reply Brief for Petitioners 5 (arguing that "[a] reasonable person can make this judgment through . . . a common understanding and definition of the applicable terms"). I therefore assume that "deviant" and "morbid" carry the meaning that they convey in ordinary speech. The adjective "deviant" ordinarily means "deviating . . . from some accepted norm," and the term "morbid" means "of, relating to, or characteristic of disease." Webster's 618, 1469. A "deviant or morbid interest" in violence, therefore, appears to be an interest that deviates from what is regarded-presumably in accordance with some generally accepted standard-as normal and healthy. Thus, the application of the California law is heavily dependent on the identification of generally accepted standards regarding the suitability of violent entertainment for minors.

The California Legislature seems to have assumed that these standards are sufficiently well known so that a person of ordinary intelligence would have fair notice as to whether the kind and degree of violence in a particular game is enough to qualify the game as "violent." And because the Miller test looks to community standards, the legislature may have thought that the use of undefined community standards in the violent video game law would not present vagueness problems.

There is a critical difference, however, between obscenity laws and laws regulating violence in entertainment. By the time of this Court's landmark obscenity cases in the 1960's, obscenity had long been prohibited, see Roth, 354 U. S., at 484--485, and this experience had helped to shape certain generally accepted norms concerning expression related to sex.

There is no similar history regarding expression related to violence. As the Court notes, classic literature contains descriptions of great violence, and even children's stories sometimes depict very violent scenes. See ante, at 8--9.

Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children's literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite "deviant" or "morbid" impulses. See Edwards & Berman, Regulating Violence on Television, 89 Nw. U. L. Rev. 1487, 1523 (1995) (observing that the Miller test would be difficult to apply to violent expression because "there is nothing even approaching a consensus on low-value violence").

Finally, the difficulty of ascertaining the community standards incorporated into the California law is compounded by the legislature's decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.

In response to a question at oral argument, the attorney defending the constitutionality of the California law said that the State would accept a narrowing construction of the law under which the law's references to "minors" would be interpreted to refer to the oldest minors-that is, those just short of 18. Tr. of Oral Arg. 11--12. However, "it is not within our power to construe and narrow state laws." Grayned, 408 U. S., at 110. We can only " 'extrapo-late [their] allowable meaning' " from the statutory text and authoritative interpretations of similar laws by courts of the State. Ibid. (quoting Garner v. Louisiana, 368 U. S. 157, 174 (1961) (Frankfurter, J., concurring in judgment)).

In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an "oldest minors" construction.*fn14

For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.


Having outlined how I would decide this case, I will now briefly elaborate on my reasons for questioning the wisdom of the Court's approach. Some of these reasons are touched upon by the dissents, and while I am not prepared at this time to go as far as either JUSTICE THOMAS or JUSTICE BREYER, they raise valid concerns.


The Court is wrong in saying that the holding in United States v. Stevens, 559 U. S. ___ (2010), "controls this case." Ante, at 4. First, the statute in Stevens differed sharply from the statute at issue here. Stevens struck down a law that broadly prohibited any person from creating, selling, or possessing depictions of animal cruelty for commercial gain. The California law involved here, by contrast, is limited to the sale or rental of violent video games to minors. The California law imposes no restriction on the creation of violent video games, or on the possession of such games by anyone, whether above or below the age of 18. The California law does not regulate the sale or rental of violent games by adults. And the California law does not prevent parents and certain other close relatives from buying or renting violent games for their children or other young relatives if they see fit.

Second, Stevens does not support the proposition that a law like the one at issue must satisfy strict scrutiny. The portion of Stevens on which the Court relies rejected the Government's contention that depictions of animal cruelty were categorically outside the range of any First Amendment protection. 559 U. S., at __ (slip op., at 5). Going well beyond Stevens, the Court now holds that any law that attempts to prevent minors from purchasing violent video games must satisfy strict scrutiny instead of the more lenient standard applied in Ginsberg, 390 U. S. 629, our most closely related precedent. As a result of today's decision, a State may prohibit the sale to minors of what Ginsberg described as "girlie magazines," but a State must surmount a formidable (and perhaps insurmountable) obstacle if it wishes to prevent children from purchasing the most violent and depraved video games imaginable.

Third, Stevens expressly left open the possibility that a more narrowly drawn statute targeting depictions of animal cruelty might be compatible with the First Amendment. See 559 U. S., at ___ (slip op., at 19). In this case, the Court's sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors' access to violent video games is allowed-at least without supporting evidence that may not be realistically obtainable given the nature of the phenomenon in question.


The Court's opinion distorts the effect of the California law. I certainly agree with the Court that the government has no "free-floating power to restrict the ideas to which children may be exposed," ante, at 7, but the California law does not exercise such a power. If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking in exactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented from purchasing certain materials; and under both laws, parents are free to supply their children with these items if that is their wish.

Citing the video-game industry's voluntary rating system, the Court argues that the California law does not "meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so." Ante, at 15. The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7--10, a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired*fn15 -or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished. Nor does the Court note, as JUSTICE BREYER points out, see post, at 11 (dissenting opinion), that many parents today are simply not able to monitor their children's use of computers and gaming devices.


Finally, the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. Any assessment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future.

Today's most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage.*fn16 Many of the games already on the market can produce high definition images,*fn17 and it is predicted that it will not be long before video-game images will be seen in three dimensions.*fn18 It is also forecast that video games will soon provide sensory feedback.*fn19 By wearing a special vest or other device, a player will be able to experience physical sensations supposedly felt by a character on the screen.*fn20 Some amici who support respondents foresee the day when " 'virtual-reality shoot-'em-ups' " will allow children to " 'actually feel the splatting blood from the blown-off head' " of a victim. Brief for Reporters Comm. for Freedom of the Press et al. as Amici Curiae 29 (quoting H. Schechter, Savage Pastimes 18 (2005)).

Persons who play video games also have an unprecedented ability to participate in the events that take place in the virtual worlds that these games create. Players can create their own video-game characters and can use photos to produce characters that closely resemble actual people. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course of the action in the game. In addition, the means by which players control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform.*fn21 For example, a player who wants a video-game character to swing a baseball bat-either to hit a ball or smash a skull-could bring that about by simulating the motion of actually swinging a bat.

These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed.

In some of these games, the violence is astounding.*fn22

Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.

It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and re-enact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.*fn23

The objective of one game is to rape a mother and her daughters;*fn24 in another, the goal is to rape Native American women.*fn25 There is a game in which players engage in "ethnic cleansing" and can choose to gun down African-Americans, Latinos, or Jews.*fn26 In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.*fn27

If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.

The Court is untroubled by this possibility. According to the Court, the "interactive" nature of video games is "nothing new" because "all literature is interactive." Ante, at 10--11. Disagreeing with this assessment, the International Game Developers Association (IGDA)-a group that presumably understands the nature of video games and that supports respondents-tells us that video games are "far more concretely interactive." Brief for IGDA et al. as Amici Curiae 3. And on this point, the game developers are surely correct.

It is certainly true, as the Court notes, that " '[l]iterature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own.' " Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)). But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.*fn28

When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.

For all these reasons, I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.

JUSTICE THOMAS, dissenting.

The Court's decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law "abridg[es] the freedom of speech." U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.*fn29


When interpreting a constitutional provision, "the goal is to discern the most likely public understanding of [that] provision at the time it was adopted." McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (THOMAS, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, "its meaning does not alter." McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 359 (1995) (THOMAS, J., concurring in judgment) (internal quotation marks omitted). "That which it meant when adopted, it means now." Ibid. (internal quotation marks omitted).

As originally understood, the First Amendment's protection against laws "abridging the freedom of speech" did not extend to all speech. "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571--572 (1942); see also United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 5--6). Laws regulating such speech do not "abridg[e] the freedom of speech" because such speech is understood to fall outside "the freedom of speech." See Ashcroft v. Free Speech Coalition, 535 U. S. 234, 245--246 (2002).

In my view, the "practices and beliefs held by the Founders" reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre, supra, at 360. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood "the freedom of speech" to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents. Cf. Brief for Common Sense Media as Amicus Curiae 12--15. The founding generation would not have considered it an abridgment of "the freedom of speech" to support parental authority by restricting speech that bypasses minors' parents.


Attitudes toward children were in a state of transition around the time that the States ratified the Bill of Rights. A complete understanding of the founding generation's views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England.

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. "The patriarchal family was the basic building block of Puritan society." S. Mintz, Huck's Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13.

Part of the father's absolute power was the right and duty "to fill his children's minds with knowledge and . . . make them apply their knowledge in right action." E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were "innately sinful and that parents' primary task was to suppress their children's natural depravity." S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) ("Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves"); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their children read "vain Books, profane Ballads, and filthy Songs" or "fond and amorous Romances, . . . fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like." The History of Genesis, pp. vi--vii (3d ed. corrected 1708).

This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents' consent. 2 Records and Files of the Quarterly Courts of Essex County, Massachusetts, p. 180 (1912); 4 id., at 237, 275 (1914); 5 id., at 143 (1916); see also Morgan 146. And a "stubborn or rebellious son" of 16 years or more committed a capital offense if he disobeyed "the voice of his Father, or the voice of his Mother." The Laws and Liberties of Massachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also J. Kamensky, Governing the Tongue 102, n. 14 (1997) (citing similar laws in the Connecticut, New Haven, Plymouth, and New Hampshire Colonies in the late 1600's).


In the decades leading up to and following the Revolution, attitudes towards children changed. See, e.g., J. Reinier, From Virtue to Character: American Childhood, 1775--1850, p. 1 (1996) (hereinafter Reinier). Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same overarching principles remained. Parents continued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.