Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

2011 Case of the Year: Brown v. Entertainment Merchants Association

Now that we have reached the new year, lawyers and bar associations are rolling out their programs reviewing developments in the law in 2011. I am no exception, because I am a panelist for the “Hot Topics in Business and Technology Law – 2011” program for the Santa Clara County Bar Association (in San Jose, California). As part of my appraisal of 2011, I am in the process of reviewing legislative and case law developments in California and at the federal level.

In that spirit, I believe the case of the year for the 3D Internet is Brown v. Entertainment Merchants Association, a case issued by the U.S. Supreme Court on June 27, 2011. Given how unusual it is for the U.S. Supreme Court to take up a case having to do with video games, the Court’s decision makes for an obvious 2011 case of the year for the video game industry. In Brown, the Court held that that California’s state law limiting the sale of violent video games violated the First Amendment and affirmed an injunction against any enforcement of the law. For a copy of the Court’s opinion, click here.
The California law in question, AB 1179, codified at Sections 1746 to 1756.5 of California’s Civil Code, prohibits the sale of “violent” video games to minors and requires a label of “18” on the packaging of such games. The term “violent” refers to games involving killing, maiming, dismembering, or sexually assaulting an image of a human being if a reasonable person would believe the game appeals to a deviant or morbid interest of minors that is “patently offensive” under prevailing standards in the community. (Interestingly, by limiting the scope of the law to images of human beings, the law apparently would not have prohibited morbid images of killing aliens or animals.)

The justices voted 7-2 to affirm lower court rulings that AB 1179 is unconstitutional and cannot be enforced by the State of California. The majority opinion of five justices, penned by Justice Scalia, began by noting that video games qualify for First Amendment protection, just like books, plays, and movies. Moreover, the government cannot restrict expression simply because it disagrees or abhors its content. Because AB 1179 addressed the content of the games, it cannot pass First Amendment muster unless it meets the strict scrutiny test. Under the strict scrutiny test, the law cannot stand unless it is justified by a compelling government interest and is narrowly tailored to serve that interest.

The Court had reviewed the academic research in the record concerning the correlation between violent video games and violent behavior in children. Nonetheless, the research in the record did not show a direct correlation between violent games and harm to minors. Consequently, the State could not show that the legislation is justified by a compelling governmental interest.

Moreover, the Court found that the legislation is both underinclusive and overinclusive. The research showed that violent video games’ effect on children is about the same as other violent media, such as television shows, and yet the legislation only targets video games. Moreover, the legislation allows children access to violent video games if a parent, aunt, or uncle approves (without a reliable approval verification process), despite the alleged harm. In other words, if the games are so bad, why allow any access at all? In these respects, the legislation is underinclusive. It is also overinclusive because it sweeps in children whose parents don’t care about their access to violent video games. The underinclusiveness and overinclusiveness mean that the legislation is not, as it must be, narrowly tailored to serve the State’s interest.

What does the Brown case mean for video game companies making daily decisions about designing or offering their products? First, Brown serves as a reminder that video game companies do have First Amendment rights and that video games receive protection, just like other forms of media and art. Therefore, game companies may be able to challenge overly restrictive government limitations. Second, since publishing video games has constitutional protections, game companies should be aware of the possibility of defenses under anti-SLAPP state laws. Strategic lawsuits against public participation (SLAPP) seek to chill speech. If a game publisher is a defendant in a suit seeking to halt publication, counsel should at least consider whether an applicable anti-SLAPP law could provide a defense.

Finally, the Brown case extends First Amendment jurisprudence to video games. The case may spawn interest in other freedom of speech issues surrounding video games. For instance, do freedom of speech cases concerning public solicitations at shopping malls apply to 3D Internet virtual shopping malls? These and other freedom of speech issues will arise from 3D Internet technologies someday.