|
Strengthening the First Amendment, Brown v. Entertainment Merchants Association
In Brown v. Entertainment Merchants Association the Supreme Court struck down a California law restricting the sale or rental of violent video games based upon a facial challenge by video-game and software manufacturers. This case, which the majority found to be controlled by another recent decision, United States v. Stevens, may evince a mounting concern at the Supreme Court with ensuring the vitality of the Constitution’s promise of free speech by stalling erosion of the First Amendment in Supreme Court precedents. To be sure, Stevens and Brown set sharp limits as to what the text of the amendment does not encompass—namely, everything other than categories of speech that the Court has already determined to be unprotected. In so doing, the Court appears focused on twin aims: (1) ensuring that the First Amendment reaches as far as possible, within the confines of its prior opinions, and (2) creating a climate that is highly unfavorable for the recognition of any further categorical exceptions to the reach of the First Amendment.
A second issue of note, although far less at the forefront, is the interplay between parental rights and First Amendment protection. Specifically, the California law acted as negative option for parents—while minors could not buy violent video games, parents were still allowed to buy them for their children. This negative option, California argued, was necessary to aid parents in determining the content of video games that their children played. The majority rejected this argument, finding the negative option addressed a largely non-existent problem (due to the voluntary ratings system already in place for video games) and was not narrowly tailored. Justice Thomas’s dissent takes special issue with this conclusion, arguing that the history of the American Puritan family demonstrates that there is no right to reach children with speech unless that speech is vetted through their parents, the system California has established here.
The opinion was fractured. Five justices found that the law violated the First Amendment’s protection of free speech; two justices found that the law was too vague to withstand scrutiny under the due process clause; and two justices dissented, each for separate reasons. A more fulsome discussion of each opinion is provided below.
The five justice majority invalidated the California law as an impermissible restraint on speech. The opinion begins by setting out a rigid, bright-line rule limiting the categories of
Brown v. Entertainment Merchants Association, No. 08-1448 (June 27, 2011) (slip opinion).
United States v. Stevens, 130 S.Ct. 1577 (2010).
See Brown, No. 08-1448 at *3 (“Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”); Stevens, 130 S. Ct. at 1584, 1586 (exceptions to the reach of the first amendment are limited to speech regarding obscenity, defamation, fraud, incitement, and speech integral to criminal conduct; but with the caveat that “[m]aybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.”).
The majority opinion was authored by Justice Scalia, and was joined in by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.
unprotected speech to those already determined to be beyond the historical reach of the First Amendment. A naturally corollary to this holding emerges as well: legislatures cannot create new categories of unprotected speech for any reason.
Speech depicting violence, of course, is protected under the First Amendment. But because the law at issue here pertained only to minors, a second constitutional question arose—for those categories of speech protected under the First Amendment, are the rights of adults and children coextensive? The Court answered yes, distinguishing prior cases that allowed minor-speech to be regulated differently from their parents. As the Court explained, unlike the laws in its prior decisions, the California law “does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children.” Instead, the California law attempted to deny minors access to speech to which their parents could not be denied access. At its broadest, then, the rule set forth in Brown suggests that legislature cannot regulate any form of protected speech whether for minors or adults (unless, of course, it could meet the strict scrutiny test).
In the opinion of several concurring and dissenting Justices, this reading of the First Amendment cramped parental control over children. Perhaps sharing in this discomfort, the majority left itself an escape valve, ostensibly based in history: According to the Court, “if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence” then California’s argument might have fared better. Looking to history, the Court then explained that American children have been exposed to speech depicting violence both today and yesterday, citing works such as Grimm’s Fairy Tales and Homer’s Odyssey. This analysis is unsatisfying because, as the Breyer dissent notes, it blinks its eye at the reality of past and present—an all too common aspect of historical adjudication. Indeed, as Justice Breyer explains, “[f]or every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there
Because California conceded that video-games qualify as speech protected under the First Amendment, there was no need to analyze whether video-games are speech. Brown, No. 08-1448 at *2. The Court did explain, however, that video-games qualify as speech. Brown, No. 08-1448 at *2-3.
Id. at *3.
Id. at *3.
Id. at *6.
Id. at *8.
Id. at *8-11.
It has long been recognized that history in the hands of the Supreme Court can prove dangerous. As one commentator observed: “’[O]nly within recent years … have the justices who discovered and embraced the solacing simplicities of historical adjudication endeavored to persuade us that a careful reading of history confirms their confidence. And if the Justices ‘have not always succeeded in this effort … they have at least taught us that a selective interpretation of history can provide much satisfaction to the interpreter.’” Alfred Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 119 (1965) (quoting Mark Howe, Split Decisions, N.Y. Rev. of Books, 17 (July 1, 1965)). Many of the criticisms have been echoed by more modern authors. As one author noted: “Looking at the relevance of the Kelly thesis to the Supreme Court after three decades, the most surprising fact is how many of Kelly’s criticisms are still valid. For example, the Court continues to resort to history to decide constitutional cases, it continues to write law office history, and it continues to ask questions of the past that the past cannot answer.” Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court’s Uses of History, 13 J.L. & Pol. 809, 883-84 (1997).
are those know the story of Lady Godiva.” Just as classical literature exposes children to accounts of violence, so too it exposes them to accounts of sexual activity; and so the Supreme Court’s distinction appears to be built on little more than sand.
Relying on its conclusion that exposing minors to speech depicting violence is protected under the First Amendment, the Court applied its strict scrutiny test, which requires the law to be narrowly drawn to serve a compelling governmental interest. California asserted two interests under this test. First, it contended that the law addressed a compelling social problem—video-game violence causing real-life violence. Second, according to California, the law helped concerned parents control the content to which their children were exposed. The Court rejected both justifications. With respect to the former, the Court brushed aside the legislative findings of the California Legislature—explaining that when applying strict scrutiny the Court may second guess legislative findings—and determined that because there was no conclusive proof linking video-game violence and real life violence, California failed to identify an “actual problem” in need of solving. Going further, the Court assumed the problem but still rejected California’s solution as insufficiently narrow—even if speech depicting violence begets real-life violence, banning only one form of speech depicting violence would be horribly under inclusive.
California’s argument that its law aided parental authority was given short-shrift by the Court, which explained that aiding parental authority is different from dictating parental choices and then allowing the parents a negative veto. The Court went on to note that the class of parents in need of California’s aid was exceeding small; for concerned parents there was already a voluntary ratings system in place that allows parents to restrict their children’s access to violent video games, so the law only helps parents who would restrict access but are physically unable to do so. Because the act could not pass strict scrutiny, the Court struck it down as unconstitutional.
- Justices Alito and Roberts concurred in the judgment, but did not agree with the First Amendment holding. Instead, they would have invalidated the law on vagueness grounds under the due process clause. Specifically, the concurrence found that the statute’s definition of “violent video games” was not defined with the requisite “narrow specificity,” because the application of the California law depended heavily on the “identification of generally accepted
Brown, No. 08-1448 at *8 (Breyer, J. dissent). Indeed, Justice Breyer need not even look to other authors. As sure as the Odyssey recounts tales of violence, it also has sexual depictions such as Demodocus’s song regarding an illicit affair between Venus and Mars. See VIII Homer, The Odyssey, available at http://classics.mit.edu/Homer/odyssey.mb.txt.
Brown, No. 08-1448 at *11 (Scalia, J.).
Id. at *11-13.
Id. at *13-14.
Id. at *15 (“At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to minors.”).
Id. at *15-16.
Brown, No. 08-1448 at *1-2 (Alito, J. concurring).
|
