Brown v. Entertainment Merchants Association, 564 US 786 (2011), is an important case by the United States Supreme Court that struck a California law 2005 that prohibits the sale of certain violent video games for children without parental supervision. In Decision 7-2, the Court upheld a lower court ruling and annulled the law, deciding that the video game protected the speech under the First Amendment as another form of media.
The verdict was seen as a significant win for the video game industry. Some Court judges suggest that this issue may need to be revisited in the future, given the changing nature of video games and their ever-increasing technology.
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Many video games, in early 1976's Death Race, incorporated some aspects of violence into game mechanics, such as killing enemies with weapons, using explosives to destroy structures, or engaging in dangerous race vehicles.. With modern technology, such violent representation becomes more realistic. This leads to concerns that minors who play the video game will be affected by violence, altering their real-life behavior. Academic research has sought to find a link between violent video games and the degree of violence and crime of those who play them; some people claim connections exist, while others do not find a connection between them. Incidents such as the Columbine High School massacre in 1999 have raised concerns about potential links between video games and violence. Therefore, many caring groups including politicians and parents have sought to impose video game regulation controls to prevent their sales to youth. Before and during the case Brown v. , parties such as the Entertainment Software Association (ESA) seek to revoke similar state laws that place limits on the sale of violent video games to minors in Michigan and Illinois. ESA won these cases, with laws found unconstitutional and overly restrictive of protected speech. These countries are no more challenging court decisions. ESA also defeated the Louisiana Bill in the 2006 case of Entertainment Software Association v. Foti that will try to ban the sale of violent video games from minors.
To address growing complaints and legislative efforts, the video game industry in the United States created the Council of Software Software Ratings (ESRB) in 1994. This was prompted by a congressional hearing in 1993 over violence in Mortal Kombat video games. and the lack of consistent content ratings between publishers, with Congress threatening to pass laws that would mandate a ranking system if the industry does not take its own steps. The industry reacts by forming the Interactive Digital Software Association, which will become the ESA, and establish the ESRB. The ESRB, like the American Film rating system, is a self-governing and voluntary agency that examines video game content as provided by publishers before being distributed, and rated in-depth content, generally classified from all age-appropriate to mature audiences. Video game distributors are also bound by voluntary compliance to check the buyer's age on game ratings to prevent mature titles for younger players. Most stores prevent game sales without rating, so almost every video game sold in retail in the United States is assessed by ESRB. Efforts have been made to mandate the ranking system; The Family Entertainment Protection Act, a 2005 bill introduced to the US Congress by Senators Hillary Clinton, Joseph Lieberman, and Evan Bayh, will make mandatory ESRB participation by oversight by the Federal Trade Commission, and introduce penalties for selling Adults or Adults Only content for minors. The bill, however, did not clean up the Senate. Although the ESRB faced criticism in the years 2000-2005 for adult gaming access to minors, the Board has stepped up its efforts to uphold the ratings system at retailers. A 2011 report issued by the Federal Trade Commission found that voluntary control by the ESRB had the highest success rate of any media industry, preventing the sale of mature titles for children under the age of 87% of the time. Similar content rating systems exist in other countries, including the British Board of Film Classification, the Australian Classification Board, and the Japan Computer Entertainment Rating Organization.
Maps Brown v. Entertainment Merchants Ass'n
California Act
In 2005, the California State Legislature passed AB 1179, sponsored by the then State Senator of California, Leland Yee, which banned the sale of violent video games to anyone under the age of 18 and required clear labeling outside the rating system Existing ESRB. The law will have a maximum $ 1000 penalty for each violation. The definition of "violent video games" uses a variation of the Miller test, a three-pronged test previously used by the United States Supreme Court to determine when indecent words are not protected by the First Amendment. The bill was signed into law by Governor Schwarzenegger in October 2005. The law will become effective in January 2006.
Law is a second attempt by Senator Yee to impose restrictions on video game sales to minors. The background of Yee as a child psychologist led her to emphasize a link between video games and violence and believes that the government has a strong interest in restricting video game sales to minors as it has done for pornographic work. In 2004, Yee had drafted legislation that would have required calculated video games to be spread separately from other titles. Although the bill was finally ratified as CA Law AB 1793, the language of the bill was attenuated on its part, requiring only stores to display the ESRB rating system and provide information to parents about it.
Legal challenge
District Court Opinion
Before the California Bill was signed into law, ESA and the Video Software Distributors Association (VSDA), now known as the Entertainment Merchants Association (EMA), are preparing a lawsuit to invalidate the law, fearing that the definition of "violent video games" will affect many titles that ESRB declared are labeled appropriate for young players, and threaten to harm the video game industry. VSDA filed a lawsuit in the United States District Court for the Northern District of California and later joined the ESA. Both groups succeeded in getting an order early in December 2005 to deter law enforcement during the case; US District Judge Ronald M. Whyte cited in his initial decision: "The plaintiffs have pointed out at least that serious questions arise regarding the State's ability to limit the rights of the First Amendment of minors in connection with violent video game exposure, including the question of whether there is a causal relationship between access to such games and psychological or other dangers in children. "In August 2007, Whyte finally decided to plaintiff, argued that the law violated the First Amendment, and that there is ample evidence to suggest that both video games are different from other media or that there is an established causality between violent video games and violent behavior.
The appeal of Ninth Circuit
California Governor Arnold Schwarzenegger called for a verdict in September 2007, stating that he would "vigorously defend this law" and that he and the people of California have "responsibility to our children and our community to protect against the effects of games describes ultra-violent acts. "The Ninth Circuit Court of Appeal confirms Whyte's decision in 2009.
The Ninth Circuit considers the constitutionality of the law; considering the duration of legal ratification relative to litigation, it is referred to as the "Act" in the opinion of the court. The Ninth Circuit confirms the District Court Summary Trial to VSDA by holding:
- The Act is content-based restriction that is deemed invalid on speech, so subject to strict supervision rather than the standard "variable obscenity" of Ginsberg v. New York .
- This Act infringes on the rights protected by the First Amendment because the state has not shown a strong interest yet, has not adjusted its limitations to its alleged interest, and there is a less restrictive way that will increase the stated interest of the State.
- The labeling requirement of the Act is unconstitutional coercion under the First Amendment because it does not require the disclosure of factual, but compelling information to bring controversial opinion of the country.
The first court discussed the VSDA argument that the entire Act should be refreshed based on the accused's concession on appeal that the definition of "violent video games" in the Act is unconstitutional. However, the law has a severability clause so that the court undergoes the bankruptcy tests set forth in the Hotel & amp; Rest. Int'l Union Employees v. Davis . The Court believes that the definition for "violent video games" is grammatically and functionally separated because, as an alternative definition of "violent video games," it can be removed from the Act without affecting the wording or functionality of other provisions. Furthermore, these definitions may be separated separately because they are of little importance to the passage of the Law and the legislature to adopt the Act has predicted the partial cancellation of the law. Sections of this definition are only included to avoid the possibility that a court will regulate unconstitutional conditions is unclear; the court found that the legislature would still enact legislation without this part of the definition.
The court further went on to determine what level of supervision should be applied in reviewing the prohibition of the Act. The defendants insist that the standard "variable obscenity" of Ginsberg v. New York should be used. However, the court ruled that the standard "variable obscenity" does not apply to violence. Courts at Ginsberg are careful to place substantive restrictions on their ownership, and attention at Ginsberg is considered "sex material," not violence. The court refused to extend the application of the standard "variable obscenity" to violence, so strict supervision was applied instead.
In applying strict supervision standards, the court acknowledges that "content-based regulations are considered invalid," and to survive cancellations, the Act must meet two qualifications:
- Restrictions "must be narrowly adjusted to promote the interests of the Government of interest."
- "If a less restrictive alternative will serve the Government's purpose, the legislature should use that alternative."
The court overrules laws in both accounts. First, the court said that in considering its decision, the court limited the purpose of the Act against the real danger to the brains of a child who played rough video games. Consequently, the state is asked to show that "the losses described are real, not just conjecture, and that the regulation in fact will alleviate these losses directly and materially." Here, the defendants failed to do so because all reports they rely on in making these claims are deemed flawed. While the state is permitted to protect minors from actual psychological or neurological damage, it is not permissible to control the minds of minors. Second, the court ruled that the defendants did not show the lack of a less restrictive alternative. In fact, video games are compatible with a voluntary assessment system that assesses video games based on their topic and age eligibility. This is a clear example of a less restrictive way. The Court notes that the least restrictive way is not the same as the most effective way.
The court also evaluates the constitutionality of the labeling provisions of the Act, which requires that labels be embedded in front of any packets considered by the state as "violent video games". Generally, "freedom of speech prohibits government telling people what to say." However, the court has upheld a commercial speech in which it incorporated "absolutely factual and uncontroversial information" in the ad. However, the labeling requirement of "violent video games" is not factual information. The law does not yet clearly and legally provide a way to determine whether a video game is violent so that stickers do not convey factual information. As a result, the court found that the law was unconstitutional.
Supreme Court filing appeal
Governor Schwarzenegger again appealed to the Supreme Court, seeking to overturn the decision of the Ninth Circuit, filed a certiorari letter to the Court in May 2009. The Supreme Court agreed to hear the case, at the moment filed. such as Schwarzenegger v. Entertainment Merchants Ass'n. The fact that the Court accepts this case is considered surprising, based on the previous case record for such violent video game law which is unanimously reversed in other countries. Analysts believe that since the Court agrees to hear the case, there is an unanswered question between the protection of free speech from the First Amendment, and law enforcement to protect minors from free speech without such protection through limiting the sale of pornography to minors. Just a week before the reception certiorari , in United States v. Stevens The court overturned another law seeking a restriction on the depictions of animal cruelty, which some analysts say reflects the Court's position for the possibility of abrogating violent video game law.
The Entertainment Consumers Association (ECA) launched an online petition together with their amicus brief to provide additional information to the Supreme Court. Progress & amp; The Freedom Foundation and the Electronic Frontier Foundation jointly filed a brief amicus citing a social study stating Super Mario Bros. into violent video games. That's compared to Mighty Mouse and Road Runner, a cartoon depicting a form of violence similar to a bit of a negative reaction from the public. Microsoft's game developers and Activision Blizzard support ESA's efforts. Industry associations for works of music, film and publishing, including the National Association of Broadcasters, the American Film Drawing Association, the Recording Industry Association of America, the National Cable & Telecommunications Association, and Future Music Coalition, also delivered pants to court in favor of striking under the law, fearing that should the law be found constitutional, their industry will also be affected. Associations for the protection of civil rights, including the American Civil Liberties Union, the National Coalition Against Censorship, and the National Youth Rights Association, are submitted amicus pants. Also filing amicus pants against the State of California was a coalition of other states including Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, South Carolina, Utah and Washington, as well as Puerto Rico, which declared the law necessary as no video game related evidence for youth violence and voluntary ESRB systems works well. Also proposing a brief amicus against the law is a coalition of 82 psychologists, criminologists, medical scientists and media researchers concerned that the State of California has misinterpreted science in video games.
The State of California joins eleven other States, including those which have passed laws which are subsequently declared unconstitutional; America, in a brief amicus , states that they are "very interested in protecting the welfare of children and in helping parents raise them" but the District Court decision limits their authority to do so. Further supporting the State of California are the American Academy of Pediatrics, the California Psychological Association, the Common Sense Media, and the Eagle Forum.
The oral arguments were held on November 2, 2010. To California lawyers, Judges expressed concern about the difference between video games and other commercial works such as movies and comic books. Judge Antonin Scalia wondered if the law with such an unclear definition of "violence" could also apply to Fairy Tales Grimm. To the ESA and other trade groups, the Judges suggested that California and other states have the right to protect minors from certain forms of violence, albeit with a more restrictive provision than California law. Judge John Roberts argued that while the company could provide parental filters on such violent games, "anyone 13 can pass [them] in about five minutes." Some questions center on the controversial game Pos 2 , where players can urinate on non-player characters and set them up brightly, among other violent acts. The Judges, in general, agree that enforcing California law will require "a new extension of the principle of the First Amendment to expressions of violence."
With Jerry Brown winning the California Governors 2010 election, the case was renamed to Brown v. Entertainment Merchants Ass'n after an oral hearing.
Opinion
On June 27, 2011, the Supreme Court issued a 7-2 opinion in violation of California law as unconstitutional on the grounds of the First and Fourteenth Amendment. The majority opinion was written by Judge Antonin Scalia and joined Justices Ginsburg, Kennedy, Sotomayor, and Kagan. It was first held that "video games qualify for First Amendment protection":
As well as protected books, dramas and films that precede them, video games communicate ideas - and even social messages - through many known literary devices (such as characters, dialogue, grooves, and music) and through distinctive features for medium (such as player interaction with cyber world). That is enough to provide First Amendment protection.
Judge Scalia then confirmed that, states may pass legislation to block obscene material from minors as decided in the 1968 case Ginsberg v. New York , "speech about indecent violence," and California law is against the law. The decision refers to a fairy tale like the Grimm Brothers, which is regularly given to children to read, "not containing gore deficiencies" that are also present in the video games. Further decisions versus video games for classics such as The Divine Comedy, states that "Even if we can see in it there is no value possible for society [...], they are equally entitled to the protection of freedom of speech as the best literature. "Scalia's decision also states that current moderated industry standards such as the ESRB are effectively operated to regulate more mature game sales to minors, and that" fill the remaining small gaps in parental controls concerned can not be of interest to the state of interest. "The law needs to be enforced. The Court's decision also ruled that from the evidence, there is no "forced" relationship between violent video games and their impact on children. The decision cited a medical report confirming that cartoons such as Looney Tunes produce the same effect on children as in games like Sonic the Hedgehog or gun images. Alito's concurrence
Judge Samuel Alito wrote a separate agreement in favor of a majority decision, and joined Supreme Court Justice John Roberts. Although Alito agrees with the constitutional application of California law, believes that the "threshold requirement" that guides the material to be covered by law is too broad, he questions the potential double standard that exists between violence and sexual content in this case the threshold. Alito writes that he is not convinced that there is no connection between violent video games and effects on children, stating that "There is reason to suspect that the experience of playing violent video games may be very different from reading a book, listening to a radio, or watching a movie or television show , "references the Infinite Reality book that highlights the psychological effects of virtual reality, and argues that the decision" will not extinguish legislative efforts to address what some perceive to be a significant and growing social problem. "
Dissents
Judges Clarence Thomas and Stephen Breyer disagreed, each writing disagreements separately. Justice Thomas, in his dissent, considers that historically, the Founding Fathers "believe parents to have full authority over their children and expect parents to direct the development of the children," and that the intent of the First Amendment " including the right to speak to minors (or the right of minors to access the speech) without going through the parent or guardian of a minor. "
Breyer writes separately, concerned that majority decisions contradict previous rulings of Ginsberg and Miller . He compared previous findings that govern the sale of publications containing nudity to violent video games: "But what's the point of banning the sale to a 13-year-old boy a magazine with a picture of a naked woman, while protecting sales for that 13-year-old from an interactive video game at where is he active, but actually, binds and silences the woman, then tortures and kills her? "Breyer further states that" The case is ultimately less about censorship than about education, "believes that the Government has an interest in allowing parents to make decisions for "California law imposes no more than a simple limitation on expression." Breyer also expressed concern that the self-regulation of the industry still allows 20% of children the BA wow age to buy video games mature to the national average, and as high as 50% in the case of one national network, based on the above-mentioned 2011 Federal Trade. Commission study.
Reaction
The decision was praised by the video game industry, which expects the law to be ruled unconstitutional, but requests confirmation by the Court. ESA CEO Michael Gallagher replied that "The court stated emphatically that content-based restrictions on games are unconstitutional, and that parents, not government bureaucrats, have the right to decide what is appropriate for their children." Bo Anderson of EMA stated that "there is now no argument as to whether video games are entitled to the same protection as books, movies, music and other expressive entertainment," while Electronic Arts (former) CEO John Riccitiello confirmed that the decision "Affirms the constitutional rights of the developers game. " Other entertainment industries, such as the Motion Picture Association of America, also show support for Court decisions. Former US Senator and current Chief Associate Chris Dodd acknowledged that the film industry has seen similar efforts to limit freedom of expression, and that "We praise the Supreme Court for recognizing the vast First-Amendment implications filed by California law."
Groups that support California law are critical of the decision. California State Senator Leland Yee was critical of the decision, claiming that "It is wrong that the video game industry can be allowed to put their profit margins on the rights of parents and the welfare of children." Yee stated he would review his opinion and try to reintroduce a new bill within the constitutionality of the decision, and claimed it was "disappointing the court does not understand how hard this game is." James Steyer of Common Sense Media also criticized the decision, citing that "If parents decide violent play is fine for their child, that's one thing, but millions of children can not judge the impact of ultra violence on its own." Andy Schlafly, who has filed a brief briefing to the court on behalf of the Elang Forum and the Defense Fund, strongly denounced the opinion of the majority, believing that "the final neglect of parental rights in court is on a crash course with technological advances." Tim Winter of the Parents Television Council affirmed that the Court's decision "replaces parental authority with the economic interests of the video game industry." The Washington Post argues that the California law "does nothing to infringe on the rights of adults" while dealing with "reasonable restrictions on the access of minors" to very cruel games that even the industry recognizes video games are inappropriate, "And that with a high bar for future legislation, the responsibility exists in the video game industry to maintain the polishing of video game sales.
Analysts believe that while this is a big win for the video game industry, the challenge is not over. Dan Offner, partner for video game industry analysis company Loeb & amp; Loeb believes that similar laws and regulations will be sought by State and Federal governments, as "setting adult content with respect to minors as a hot button issue for the Federal Trade Commission and various state governments." Other analysts say that because more game content is available online than retail channels, the focus may be to shift more toward children's "privacy and security" and prevent children from accumulating substantial fees from paid gaming services, up to $ 3 million settlement that Playdom has to pay for violating the privacy of its younger users. Sean Bersell of EMA notes that future debates on violent video games may involve public opinion in addition to the new law, noting that "Retailers along with publishers and parents all have a role in keeping kids away from these games." Seth Schiesel of the New York Times proposed that the Court's decision should be a challenge for the industry to show that they can mature on the decision that a video game is an art form, questioning industry "Will you use it as a cover for pumping out schlock or will you rise to the opportunities and honors that have been given to you? "Schiesel also considers that even if a game with increased interactivity and reality can make the game more dangerous, it can also make the player more aware of the potential consequences of his actions, even when such acts are done for the purpose of earning points./level or to kill the "dangerous enemy" in the game.
In January 2012, the state of California agreed to pay ESA $ 950,000 to reimburse ESA's legal fees during the Supreme Court hearing, above about $ 350,000 in fees from previous court proceedings in lower courts. ESA states that they will use an unspecified part of this money to help make after school programs in "underserved" communities in the Oakland and Sacramento areas to help teach students' work skills. The total cost of case defense is estimated at approximately $ 1.8 million, including the cost of the State's own law.
In March 2012, Kenneth Doroshow and Paul M. Smith, attorneys for the EMA who debated the case, were awarded the Ambassador Award by the International Game Developers Association's Game Developers Choice Awards. The Ambassador's award "honors individuals or individuals who have helped advance the gaming industry to a better place, either by facilitating a better in-game gaming community, or by reaching beyond the industry to become advocates for video games."
In a seminar given in November 2014, Judge Elena Kagan expressed her thoughts about the decision in this case, noting that for herself, she faced a difficult decision between what she felt was right - allowing parents to decide what should be seen and played by their children - and how the state of the law is, and in the back, still not sure if they made the right decision. He noted that he along with four others in court effectively added the language to a decision that would precede future laws that seek to limit game sales.
Mike Gallagher, CEO of ESA, observed in 2017 that the same moral panic that caused concerns over video games and resulted in the case began to emerge for newer video game systems that could further blur the line between virtual worlds and the real world, such as virtual reality, augmented reality, and mixed reality, and anticipate that there will be further tests of First Amendment implementation of this protection of new forms of media.
Public opinion
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