Supreme Court Strikes Down Censorship Law

In a resounding 7-2 decision [1] on Monday, the United States Supreme Court struck down a California law banning video games with violent themes and images, saying that the state’s attempt to create a new category of First Amendment regulation for minors was “unprecedented and mistaken.” Media Coalition [2], whose members include the American Booksellers Foundation for Free Expression [3] and the Association of American Publishers [4], said the ruling sends a clear message to legislators that such efforts to restrict free expression would find no welcome at the Court.

“The Court clearly saw this law for what it was — an ill-advised attempt to create a whole new category of speech unprotected by the First Amendment,” said David Horowitz, executive director of Media Coalition, which in September 2010 filed a friend-of-the-court brief [5] in the case on behalf of its members and other media trade associations. “As the Court today made clear, violent images and themes in video games are entitled to the same full First Amendment protection as those found in books, movies, comic books, music, and every other form of expression.”

“This is an extremely important decision for booksellers,” said ABFFE President Chris Finan. “If the Supreme Court had upheld the ban on violent video games, there is no question that lawmakers would have introduced legislation restricting books with violent content as well.”

At issue in Brown v. Entertainment Merchants Association was a challenge to a 2005 California video game law that prohibited the sale or rental to minors of any video game containing certain violent content. The law, which was blocked by a federal judge in 2006, before it took effect, also required such manufacturers to include an “18 and older” warning label on the front of the package, and provided civil penalties of up to $1,000 for violations.

Writing for the 7-2 majority, Justice Antonin Scalia noted that “this country has no tradition of specially restricting children’s access to depictions of violence,” and he cited historic attempts to restrict violence in movies, comic books, and the “dime novels” of the 1800s.

Acknowledging that states have a legitimate interest in protecting minors, Justice Scalia said this “does not include a free-floating power to restrict the ideas to which children may be exposed.” His opinion cited numerous examples of graphic and gory violence in classical children’s literature, including Grimm’s Fairy Tales, Homer’s Odyssey, and Lord of the Flies, which were among the titles listed in an appendix to Media Coalition’s amicus brief.

The Court also noted that studies cited by California to prove violent images in video games are damaging to minors “have been rejected by every Court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning).”

Media Coalition’s Horowitz said, “The Court has now made it abundantly clear that it will not tolerate bans on free expression simply because it is disfavored or distasteful — whether it’s violent video games, depictions of animal cruelty or hateful protests at funerals.”

In addition to ABFFE and AAP, the amicus brief was signed by three other Media Coalition members — Freedom to Read Foundation; National Association of Recording Merchandisers, and Recording Industry Association of America — as well as by four other media groups — Association of National Advertisers, Amusement & Music Operators Association, PEN Center USA, and Recording Academy.