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Case 6.2
BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION
Supreme Court of the United States
131 S. Ct. 2729; 180 L. Ed. 2d 708; 2011 U.S. LEXIS 4802 [June 27, 2011]
FACTS:
California law 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 “cause the game, as a whole, to lack serious
literary, artistic, political, or scientific value for minors.”
Respondents, representing the video game and software industries, filed a pre-enforcement
challenge to the Act.
PROCEDURE: The Federal District Court determined that the Act violated the First Amendment and
permanently enjoined its enforcement. The 9th Circuit affirmed.
ISSUE: Does a California law which imposes restrictions on violent video games conform to the First
Amendment?
RULE: “As a general matter…..government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.”
REASONING:
1. 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.
2. According to United States V. Playboy Entertainment Group, Inc., when applying the Constitution to
whatever a legislature finds shocking, but only depictions of “sexual conduct.”
ADDITIONAL INFORMATION:
The court distinguishes the Act in this case from the New York statute that was approved in
Ginsberg v. New York. The Ginsberg case dealt with materials of a sexual nature which were found
to be obscene. In the current case, violent language is not considered obscene.
California’s argument would fare better if there were a longstanding tradition in this country of
