Brown v. Entertainment Merchants and Why Conservatives Split on Video Games

Two conservatives walk into a video game store. One says, "The state has no business telling anybody what a game can show." The other says, "The state has every right to help a parent keep a bloody simulator out of a twelve-year-old's hands." They argue for forty minutes, the clerk rings up a copy of a football game, and both walk out convinced they won. That is not a joke. That is the Supreme Court in June 2011.

Brown v. Entertainment Merchants Association is one of the rare cases where two of the Court's most committed originalists, Justice Antonin Scalia and Justice Clarence Thomas, ended up on opposite sides, and where the disagreement was not about politics but about what the First Amendment meant to the men who wrote it. If you want to understand how serious conservatives think about speech, children and parental authority, this is the case to study.

I will give you the facts, the holdings and both conservative arguments at full strength. Then I will tell you which one I think better protects families, and why.

The California law

In 2005 California enacted a statute, pushed in the legislature by Leland Yee, that made it a crime to sell or rent a "violent video game" to a minor. The law covered games in which the range of options available to a player included killing, maiming, dismembering or sexually assaulting an image of a human being, in a way that was patently offensive to prevailing standards about what is suitable for minors, appealed to a deviant or morbid interest of minors, and lacked serious literary, artistic, political or scientific value for minors. A violation carried a fine of up to $1,000. The law also required a label, a large "18," on covered games.

Industry groups sued, and lower federal courts blocked the law. The case reached the Supreme Court after Governor Arnold Schwarzenegger's name had been on the caption, and it was renamed for his successor, Governor Jerry Brown, which is why the case is called Brown. The Court heard argument in November 2010 and decided it on June 27, 2011.

The holding

By a vote of 7 to 2, the Court struck the law down. Justice Scalia wrote the opinion for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Alito, joined by Chief Justice Roberts, concurred in the judgment on narrower grounds. Justices Thomas and Breyer dissented separately.

Scalia's opinion makes four moves.

1. Video games are speech. Like books, plays and movies, video games communicate ideas, through characters, dialogue, plot and music, and through the interactive features of the medium. The First Amendment's protection does not vary with the technology, any more than it varied when the printing press, the motion picture or the radio arrived.
2. Violence is not a category of unprotected speech. The Court has recognized a few narrow categories, such as obscenity, incitement and true threats. Violence in expression has never been added to the list, and Scalia refused to let a legislature create a new category just because it is troubled by what the material shows. Only the Court's tradition, and not a fresh judgment that something is too dangerous, can carve out an exception.
3. There is no tradition of regulating children's access to violent content. Here is the historical heart of the opinion. Scalia pointed out that the stories children have always read are full of violence: Grimms' fairy tales, in which Cinderella's stepsisters have their eyes pecked out by doves and a witch is baked in her own oven; the Odyssey; Dante's Inferno; William Golding's Lord of the Flies. If violence in stories were suspect, the library would have to be shut.
4. The law fails strict scrutiny. Because the law restricts speech based on its content, the state must show a compelling interest and a law narrowly drawn to serve it. California offered studies connecting violent games to aggression in children, but the Court found that the studies showed at most small effects, indistinguishable from those of other media, and that the law was both under-inclusive, since it left cartoons and films alone, and over-inclusive, since it also barred sales to children whose parents wanted them to have the games. The state had not shown the necessary causal link.

Scalia also drew a distinction that matters. Earlier, in Ginsberg v. New York (1968), the Court had upheld a New York law barring the sale of sexually explicit material to minors even though the same material was constitutionally protected for adults. California wanted violence treated like that. Scalia refused: the Court's tradition had treated sexual material for minors differently, and it had never extended the logic to violence.

Justice Alito, joined by the Chief Justice, agreed that the law was unconstitutional because it was too vague about which games it covered. But he warned that the Court should not be too quick to assume that violent games are no different from books and films. Interactive, immersive games, he suggested, might pose different questions, and legislatures might in the future write a narrower and clearer law.

Justice Thomas and the founding view of children

Now to the dissent that makes this case interesting for conservatives. Justice Thomas did not argue that violent games are harmful. He argued that the entire question had been framed wrong.

His point was about history. The First Amendment, he said, was understood at the time of the Founding in a world where children were raised under the authority of their parents, and where the idea that a child had a constitutional right to receive speech without a parent's involvement would have been foreign. Founding-era education, he noted, stressed obedience and parents' control over their children's moral and intellectual formation. The Framers, in his reading, could not have understood "the freedom of speech" to include a right to speak to minors outside the parent-child relationship, without going through the parent. In other words, the majority had a historical argument about violence, but it had skipped the historical question about minors.

That is a powerful argument, and it comes from a conservative who takes the text seriously. His claim is that the law did not violate the First Amendment because the Amendment, as originally understood, did not guarantee a right to sell expression directly to children over their parents' heads.

Justice Breyer dissented separately and made a different case. He relied on Ginsberg, arguing that if the state can limit the sale of sexual material to children, it can limit the sale of extremely violent interactive games, and that the law could be upheld on Ginsberg's more flexible approach, and that it would survive even under strict scrutiny. He noted the interactive nature of the games, which require a player to take part in the violence, and he would have upheld the law.

The steelman for each side

Let me give both conservative positions the care they deserve.

The Scalia position says: government that can decide what children may buy has acquired a power that does not stay small. Today it is games; tomorrow it is books, music or films. The First Amendment is a limit on the state's authority to judge expression, and the safest course is to apply it consistently. Parents already have tools: ratings from the Entertainment Software Rating Board, retailer policies, parental controls. And the law was a state replacing a parent's choice with a legislature's. A parent who wanted to buy the game for her child could do so; the law barred the sale to the child, but a parent could buy it. Still, the principle holds that the state should not become the gatekeeper of what young people may read and play.

The Thomas position says: parents, not courts and not corporations, hold the authority over a child's upbringing, and the law was a modest tool to help them exercise it. Parents cannot be in the room every minute, and the retail environment where a twelve-year-old can walk in and buy a game full of graphic mutilation is not neutral. A state may support parents by backing their authority, and the Founders would not have been shocked at the idea. A conservative who believes in the family should be wary of a doctrine that treats the commercial seller of an experience as the rights-holder and the parent as the obstacle.

I think both are serious, and I do not think either side's champion is a fool. Justice Scalia was no libertine about culture; he was concerned about a state that decides what is fit to see. Justice Thomas was no censor; he was concerned about a court that treats the family as an afterthought.

Which better protects families

Now my verdict, plainly: the Court got the result right, and Justice Thomas got a crucial premise right. Let me explain how both can be true.

One: the law failed on its own terms. It was vague, it was aimed at one medium and not others, and the evidence of harm was thin. If a legislature is going to restrict expression, even for children, it must show a real problem and a tight fit. California did neither.

Two: the power the law claimed is the kind that grows. A legislature that can define "violent" for the purpose of a game can define it for a film or a song, and it will define it according to the preferences of whoever is in the majority that year. Conservatives know how that story ends; it ends with the other side holding the pen. A rule that protects the games you dislike also protects the books you love, and the pamphlets, sermons and podcasts of those who disagree with the powers that be.

Three: Justice Thomas is right that the parent is the primary authority. But the way to honor that is to strengthen what parents can do, not to hand the legislature a new censorship power. A family decides what comes into the house. The ratings system gives them information. Retailers, voluntarily, enforce age restrictions. Console makers let parents lock features. All of that is the parental authority Thomas defends, in working form. The law, by contrast, would have put the state between the seller and the child, and the next legislature would have decided where else to put it.

Four: the argument for family rests on a difference between supporting a parent and replacing one. A government that backs up a parent's decision is one thing. A government that decides in advance what every child may buy is a different thing, and a good conservative should hesitate before building that machinery, because it will be used by people who are not conservative.

So I come down for Scalia's holding and Thomas's premise: keep the law out of the store, and keep the authority in the home.

The founding thread

The Founders wrote the First Amendment in 1791 with language that is categorical. "Congress shall make no law... abridging the freedom of speech, or of the press." A century and a half of case law has carved out exceptions, but the principle is that the government does not get to decide what ideas and stories are fit for the people. The republic's early history is full of reminders of why: the Sedition Act of 1798 made it a crime to criticize the government, and it is remembered as a warning, as told in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell.

The same suspicion of state censors runs through the later cases. In Hustler v. Falwell Protected Parody, and Conservatives Benefit From It Now the Court protected a vicious parody of a minister because the alternative was a jury deciding which jokes were too offensive. In Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended it protected speech most of us find vile. And Tinker's Black Armbands and the Rights Students Carry Through the School Gate shows that students themselves have speech rights that conservatives rely on today. The consistent thread is that when the government gets to rank speech by taste, it ranks it by power.

A note for the next legislature

Alito's concurrence leaves a door open. A narrower, clearer statute, written for a documented harm, might survive. Legislators who want to try should read the opinions first, build a record, and write a law that is precise about what it covers. And they should ask honestly whether they are helping parents or just enjoying the headline.

Meanwhile, if you are a parent, you do not need to wait for a court. The tools exist. Look at the rating on the box, look at what your child is playing and who they are playing with, and make rules that you enforce. That is the form of authority nobody has ever been able to take away.

The case in brief

1. In Brown v. Entertainment Merchants Association (June 27, 2011) the Court held 7 to 2 that California's ban on selling violent video games to minors violated the First Amendment.
2. Justice Scalia's majority treated games as protected speech, refused to create a new exception for violence, and found no historical tradition of banning violent stories for children and no proven causal harm.
3. Justice Thomas dissented on originalist grounds, arguing that the founding generation never understood free speech to include a right to bypass parents when speaking to children.
4. Both positions are conservative and serious; the law fails because the power it claims would grow, while parents keep the best tools: ratings, controls and their own rules.
5. A republic that protects speech and a family that holds authority are not rivals, and the strongest answer to bad media is a present parent, not a new censor.

What you can do: sit down with your child's favorite game, read its rating and content descriptors, and set one clear house rule about what is played and when.