Brown v. Entertainment Merchants Association

Following is the case brief for Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)

Case Summary of Brown v. Entertainment Merchants Association:

  • Video game and software companies sought to stop enforcement of a California law that banned sale or rental of violent video games to minors.
  • The lower courts held that the law violated the First Amendment.
  • The U.S. Supreme Court agreed, holding that the law attempts to restrict protected speech, and because it does not survive strict scrutiny, it must be struck down.

Brown v. Entertainment Merchants Association Case Brief

Statement of the Facts:

California passed a law restricting the sale or rental of violent video games to minors, and required their packaging to be labeled “18.”  The Act covered games involving “a player killing, maiming, dismembering, or sexually assaulting an image of a human being,” if depicted in a way that would “appeal to a deviant or morbid interest of minors, is “patently offensive” to prevailing standards of what is suitable for minors, and renders the game lacking in serious value for minors.

Violation of the Act could result in a civil fine up to $1,000.  Video game and software companies sued in federal court to preempt enforcement of the Act on First Amendment grounds.

Procedural History:

  • The District Court enjoined the Act’s enforcement, finding that it violated the First Amendment.
  • The Ninth Circuit Court of Appeals affirmed.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Did California’s law restricting the sale or rental of violent video games to minors violate the First Amendment?  Yes.


The decision of the Ninth Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

A content-based restriction on protected speech must pass strict scrutiny, i.e., that it is justified by a compelling government interest and is narrowly drawn to serve that interest.


Video games, like books, plays, and movies, qualify for First Amendment protection.  New technology does not alter the basic principles of freedom of speech.  Further, government does not have the power to restrict expression because of its content.  There are only a limited number of exceptions to freedom of speech, which are obscenity, incitement, and fighting words.  This country has not had a tradition of specially restricting children’s access to depictions of violence.

California’s Act cannot pass strict scrutiny, meaning that the law is not justified by a compelling government interest that is narrowly drawn to serve that interest.  Research studies have not conclusively shown that violent video games cause children to behave violently.  California’s law is under-inclusive in that does not restrict other violent media from children, and the State cannot show that the law helps parents who wish to restrict their children’s access to violent videos, because the industry’s rating system already largely achieves that goal.

Concurring and Dissenting Opinions:

Concurring Opinion (Alito):

The Court’s decision was the correct one, but the rationale is not.  The Court should be careful not to assume that violent video games are like any other type of violent entertainment.  First-person violent video games are different from movies or books.  The problem is just that California did not frame its terms with the precision required by the Constitution.

Dissenting Opinion (Thomas):

The law is not facially unconstitutional under the First Amendment.  The original understanding of “freedom of speech” did not include an unqualified right to speak to minors, without going through the minors’ parents or guardians.

Dissenting Opinion (Breyer):

The statute is constitutional under a traditional First Amendment analysis.  Court precedent provides that regulation of communication to children need not conform to the requirements of the First Amendment in the same way it applies to communication to adults.  Thus, the law does not, as the Court alleges, create a “new category” of unprotected speech.


Brown v. Entertainment Merchants Association is significant because it tackles the latest technology in entertainment – violent video games – which resemble aspects of other media, but also have an element of being truly immersed in a violent world in a way that is more personal, and different, than movies or books.  Thus, the opinions show a tension between treating video games as all other types of speech, and treating the first-person violent video game as unique.  Also, this case is the rare case in which Justice Thomas is not on the same side as Justice Scalia, who wrote for the majority.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments