## Facts

- California enacted Assembly Bill 1179 (Cal. Civ. Code §§ 1746–1746.5), barring the sale or rental of defined “violent video games” to minors, requiring an “18” label, and imposing civil penalties.
- The statute defined covered games largely by allowing the player to “kill, maim, dismember, or sexually assault” a human image, and exempted games with “serious literary, artistic, political, or scientific value for minors.”
- Trade associations representing video game industry members filed a pre-enforcement action seeking declaratory and injunctive relief under the First and Fourteenth Amendments.
- The federal district court preliminarily enjoined enforcement, then granted summary judgment for the plaintiffs and permanently enjoined the statute.
- The Ninth Circuit affirmed, concluding violent video games are protected expression, the State failed to show a compelling interest, and the law was not narrowly tailored.
- The Supreme Court granted certiorari to decide whether the First Amendment permits restricting minors’ access to violent video games.

## Issues

1. Whether video games are protected speech under the First Amendment.
2. Whether a state may treat depictions of violence as a new category of less-protected speech for minors.
3. Whether California’s content-based restriction on the sale or rental of violent video games to minors survives strict scrutiny.

## Decision

- The Court affirmed the judgment invalidating the statute and left the permanent injunction in place.
- The Court held video games are protected speech, like books, plays, and films.
- The Court applied strict scrutiny because the law regulated protected expression based on content.
- The Court rejected creating a new unprotected category for violent speech directed at minors and distinguished the adjustment of obscenity standards for minors.
- The Court concluded California did not carry its burden to show a compelling interest supported by adequate evidence and narrow tailoring.
- Concurrence (Alito, joined by Roberts): agreed the law was unconstitutional, emphasizing problems of drafting and caution in applying existing doctrine to new technology.
- Dissents (Thomas; Breyer): would have upheld the law on different theories, including historical parental control (Thomas) and sufficient evidence plus tailoring (Breyer).

## Legal Principles

- Video games are expressive works entitled to full First Amendment protection.
- Content-based restrictions on protected speech are presumptively invalid and must satisfy strict scrutiny (compelling interest and narrow tailoring).
- Legislatures may not create new categories of unprotected speech by balancing a message’s value against its asserted harms; exceptions are limited to historically recognized categories.
- A claimed interest in protecting minors must be supported by evidence and pursued through means that are not substantially underinclusive or overinclusive.
- Regulations framed as assisting parents cannot broadly restrict minors’ speech rights where parents may choose differently and the law targets only one medium while leaving comparable content in others unregulated.

## Conclusion

The Court held that California’s restriction on selling or renting defined “violent video games” to minors was an unconstitutional content-based regulation of protected expression because it attempted to expand unprotected speech categories and failed strict scrutiny.


Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011)