Schwarzenegger v. Entertainment Merchants Association

This case considers whether the First Amendment right to freedom of speech protects the sale of violent video games to minors and, if so, whether a state must demonstrate that violent video games cause physical or psychological harm to minors before a state can restrict the sale of violent video games to minors. Petitioner California Governor Arnold Schwarzenegger (“California”) contends that the First Amendment does not apply to the sale of violent video games to minors because states can restrict material that is fully accessible to adults but harmful to children. California further argues that if the First Amendment did apply, the state is not required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors because courts should defer to a state’s judgment, and California presented sufficient evidence of a relationship between violent video games and aggressive behavior in minors. On the other hand, Respondents Entertainment Merchants Association and Entertainment Software Association (“Entertainment Merchants”) argue that the First Amendment protects violent video games and that the government cannot ban speech to minors. Although Entertainment Merchants does not directly argue whether states must prove a direct causal link between violent video games and harm to minors, it implies that states must meet this burden by arguing that California did not show that video games caused aggression in minors in this case.

Does the First Amendment protect the sale of violent video games to minors?

California first argues that states are permitted to regulate material that is harmful to minors because minors do not have the same First Amendment rights as adults. California asserts that minors have fewer First Amendment rights than adults because minors do not possess the same mental capabilities as adults and therefore lack the ability to make rational choices. To further support its argument, California cites cases where public schools have curtailed students’ free speech rights and argues that the state of California should be allowed the same authority. California adds that parents are entitled to support from the legislature in deciding what materials are appropriate for their children.

Entertainment Merchants responds that violent video games are fully protected by the First Amendment. Entertainment Merchants disagrees with California’s contention that minors have fewer First Amendment rights than adults and argues that the government can only restrict minors’ constitutional rights in special circumstances, such as regulating speech made in schools or through broadcasting. Entertainment Merchants also rejects California’s assertion that the cases where public schools curtailed students’ free speech rights give the state the general power to regulate material for minors, arguing that those cases only apply to the school environment. Entertainment Merchants also argues that California did not provide evidence that parents needed governmental assistance in raising their children.

Do Cal. Civ. Code §§ 1746–1746.5 violate the First Amendment?

Restrictions on the First Amendment are evaluated under the strict scrutiny standard, which requires that a law restricting speech must be narrowly tailored to serve a compelling state interest. Courts have held that protecting children’s well-being is a compelling state interest. However, in Ginsberg v. New York, the Court created an exception to the strict scrutiny rule, holding that states could restrict the sale of sexual material to minors if it was reasonable for the state legislature to find that the material was harmful to minors. California argues that the Ginsberg standard should apply instead of strict scrutiny. California would extend Ginsberg to allow states to restrict minors’ access to any material that is harmful to them. According to California, the Ginsberg standard is appropriate because violent material is equally harmful to minors as obscene or sexual material, and it strikes the right balance between minors’ interests and the interests of parents and the state in preventing minors from accessing harmful material. California argues that Cal. Civ. Code §§ 1746–1746.5 thus do not violate the First Amendment under the Ginsberg standard.

Entertainment Merchants rejects California’s argument that the Ginsberg standard applies, arguing that Ginsberg only applied to sexual material, and does not authorize the government to regulate other types of speech. Entertainment Merchants dismisses California’s comparison of violent material to obscenity, claiming that only works that depict sexual conduct are obscene. Entertainment Merchants finally argues that California ignores the reality that violence is pervasive in children’s entertainment, from the Bible and classic literature to modern children’s books such as Harry Potter.

California argues in the alternative that Cal. Civ. Code §§ 1746–1746.5 satisfy the strict scrutiny standard because they serve the compelling state interest of supporting parents in raising their children and protecting children from harm caused by playing violent video games. California also argues that Sections 1746–1746.5 are the least restrictive means to accomplish this goal because video game publishers are not required to have their games rated by the Entertainment Software Rating Board ("ESRB"), and parental filtering systems are ineffective. In addition, California adds that Sections 1746–1746.5 are the least restrictive means of protecting children from violent video games because it only prohibits direct sales to minors; the law does not prevent adults from purchasing the video games for themselves or their children. . Entertainment Merchants responds that the Ninth Circuit was correct in ruling that Cal. Civ. Code §§ 1746–1746.5 failed strict scrutiny review. First, Entertainment Merchants asserts that California does not have a compelling state interest in preventing minors from having access to constitutionally protected speech that the state finds offensive. Entertainment Merchants reasons that minors have fundamental rights, and that they cannot become well-functioning and independent adults if the state restricts the speech to which they are exposed. According to Entertainment Merchants, Sections 1746–1746.5 are also not narrowly tailored because they are too broad: under California law, a 17 year-old could not purchase a video game deemed inappropriate for a young child. Entertainment Merchants offers less restrictive alternatives to Sections 1746–1746.5, such as the current ESRB ratings and parental filtering systems.

Does a state need to prove that violent video games cause physical and psychological harm to minors?

California argues that the First Amendment does not require a state to provide a direct causal link between violent video games and physical and psychological harm to minors. California cites studies showing a relationship between playing violent video games and aggressive or antisocial behavior in minors. Relying upon the standard in Turner Broadcasting, Inc. v. FCC, which requires courts to uphold the legislature’s judgment if its determinations were based upon substantial evidence, California asserts that these studies were more than sufficient to support California’s decision that violent video games were harmful to minors. California also argues that evidence of direct causation is impossible to obtain because researchers cannot ethically or practically isolate minors from all other forms of violence to determine if violent video games have a negative physical or psychological impact.

Entertainment Merchants does not directly address the issue of whether a state needs to provide evidence of a direct causal link between violent video games and physical or psychological harm to minors. However, Entertainment Merchants implies that a state must meet this burden by arguing that the studies cited by California do not prove that video games cause minors to act aggressively. Entertainment Merchants further argues that even the studies that show there is a relationship between violent video games and aggressive behavior do not indicate whether the video games cause minors to act aggressively, or merely if aggressive minors tend to play violent video games.