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Review of Brown v EMA

Written by Eric Jun 27, 2011

This morning, the Supreme Court released the opinion in Brown v. Entertainment Merchants Assn. (formerly known as Video Software Dealers Assn. v. Schwarzenegger, and Schwarzenegger v. Entertainment Merchants Assn.). The case tested the constitutionality of a California law prohibiting the sale (or rental) of violent video games to minors, without permission of a parent or guardian.

Although the case was argued back in November, it took until now, the last day of the Supreme Courts term, to issue an opinion. By a vote of 7-2, the court found that the law was unconstitutional. Running over 90 pages long, four opinions were issued:

  • The opinion of the court (the majority opinion; the one that becomes the law of the land) was written by Justice Scalia, and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Drawing a sharp distinction between violence and obscenity, it states that protecting minors from displays of violence is not exempt from the first amendment, and finds that the law is unconstitutional.
  • The second opinion, concurring in judgment with the opinion of the court, was written by Justice Alito, and joined by Chief Justice Roberts. It finds that the law is unconstitutional vague, and therefore does not see a reason to consider the broader first amendment issues.
  • The first dissenting opinion, by Justice Thomas, explains that, historically, the first amendment does not recognize a right to speech by minors without going through their parents, and so therefore has no trouble finding the law to be constitutional.
  • The final dissenting opinion, by Justice Breyer, agrees with the majority that access to violence by minors is protected, but finds that the potential harm to minors is so great that an exception is warranted. Further, finding that the law was not overly vague, he would not have overturned the statute.

I will leave a full analysis of all of the legal issues involved to other blogs out there (or perhaps for another entry in this blog). Instead, I will focus on the key issues that address youth rights and the rights of minors. The Alito opinion, only touches upon issues of vagueness, not of first amendment constitutional rights to free speech, so little mention will be made of that opinion. Looking at the other three opinions, you could, in some sense, line them up on a spectrum. Putting Thomas’s opinion on one end (as being completely opposed to giving rights to minors) and putting Scalia’s opinion on the other, you can see the Breyer opinion as being somewhere in the middle. In all likelihood (based upon comments made in the concurring opinon), Justice Alito and the Chief Justice would fall somewhere between Alito and Breyer, had they reached the heart of the case.

One key issue that must be decided in free speech cases is the appropriate level of scrutiny to apply. When deciding if a law is constitutional, courts can apply a rational basis test (did the legislature use “reasonable means” to reach a “legitimate” government purpose), intermediate scrutiny (the law must be “substantially related” to an “important” government interest), or strict scrutiny (the law must be “narrowly tailored” to meet a “compelling government interest” by the “least restrictive means”). Obviously, a law that is only subject to the rational basis test is more likely to be upheld than a law subject to strict scrutiny. In many legal issues that are important to protecting youth rights, the level of scrutiny chosen is important. It becomes much easier for courts to strike down laws discriminating against youth. This can be seen in the issue of curfew laws, where judges have held the laws to varying levels of scrutiny, and come to varying conclusions on their constitutionality. In Brown, not only does Justice Scalia believe that the video game law should be subject to strict scrutiny, but Justice Breyer, in his dissent, agrees. On this key issue of judicial scrutiny, there is little debate (except from Justice Thomas) that the government is required to make a strong case before restricting the free speech of minors. Instead, the difference of opinion stems from a disagreement on how harmful video games are to minors. Justice Breyer believes that playing violent video games makes children violent, while the majority of the court does not find evidence for that conclusion.

Another key issue that is pervasive in all of the opinions is the role of parents. Parental rights—the right of parent’s to raise their children as they please free from interference from the state—is an issue that comes up frequently in discussions for the legal rights of minors. The California law at issue provides explicitly that parents (and aunts, uncles, grandparents, and legal guardians) can purchase or rent violent video games for their children. This is all that Justice Thomas needed to conclude that the law was constitutional. He drew on the historical record, starting with New England Puritan’s treatment of children, noting that in the 1800’s parents would regulate what books their children would read and that parents could force their children to work for whomever they pleased (and parent’s could steal their children’s wages), and observing the strict degree of control Thomas Jefferson exerted on his daughter’s lives (via regular letters) to conclude that the framers of the constitution could not have believed that children have an independent right to be spoken to. Under Thomas’s view (as noted by Scalia), it would be constitutional to pass laws requiring parental permission to attend church, to attend political rallies, or to do just about anything.

Breyer, once again, takes a more moderate view, simply that the law’s parental exception is a factor of the strict scrutiny analysis; the parental exception helps prove that the law is narrowly tailored in that it only restricts, but doesn’t prohibit, minors from obtaining violent video games. Breyer argues that, in light of the number of families where both parents work outside of the house, it is appropriate for the government to step in to help parents monitor what their children do. Scalia helpfully notes, however, that there are plenty of parents who do not care if their children are playing violent video games. Undoubtedly, there are some parents who find the requirement of having to get the video game for their child to be burdensome, rather than helpful.

I will close by briefly pointing out two more points that are of particular interest to the youth rights community. First is a footnote at the end of Thomas’s opinion. After concluding that a facial challenge to the law fails, he points out one instance where he would be likely to find the law unconstitutional, that of emancipated minors. As they have no parents to approve of their video game habits, he may very well find that the law does not apply to emancipated minors.

Finally, to touch upon the Alito concurrence (which found the law to be overly vague), they go through great lengths to discuss how video games are changing and becoming more realistic. Alito states “We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar”. Perhaps instead we would all be better served by having a justice on the court who was born after the Atari was invented.

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