U. S. Supreme Court Sides With First Amendment, Says Violent Video Games Can't Be Banned. Parents, Try To Parent Your Children, Will Ya? Watch News Video.

For fellow Lawyers, the case is BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL., No. 08–1448. You can read the entire case here, but the synopsis follows below:

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2–18.
(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium. Joseph Burstyn, Inc. v. Wil-son, 343 U. S. 495, 503. The most basic principle—that government lacks the power to restrict expression because of its message, ideas,subject matter, or content, Ashcroft v. American Civil Liberties Un-ion, 535 U. S. 564, 573—is subject to a few limited exceptions for his-torically unprotected speech, such as obscenity, incitement, and fight-ing words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, Cali-fornia’s Act 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 State wishes to cre-ate a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and
2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.
Syllabus
mistaken This country has no tradition of specially restricting chil-dren’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive. Pp. 2–11.
(b) Because the Act imposes a restriction on the content of pro-tected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy-chological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demon-strated effects are both small and indistinguishable from effects pro-duced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regula-tion is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are pro-hibited from purchasing violent video games have parents who dis-approve of their doing so. The Act cannot satisfy strict scrutiny. Pp. 11–18.
556 F. 3d 950, affirmed.

Editor's note: SCALIA, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opin-ion concurring in the judgment, in which ROBERTS, C. J., joined. THO-MAS, J., and BREYER, J., filed dissenting opinions.

Yes, you read it right: Thomas and Breyer are on the same page on this one,though INCORRECTLY I might add.




Update, 6/30/2011: read George Wills excellent piece on the opinion. Read also, if you will, Cal Thomas' piece.