Brown v. Entertainment Merchants Assn.

BROWN, CALIFORNIA, GOVERNOR OF et al. v. ENTERTAINMENT MERCHANTS

ASSOCIATION et al. No. Argued 2, 08-1448. November 2010 Decided June Attorney Zackery Deputy Supervising Gen- Morazzini, P. petitioners. argued cause for With California, of eral Attorney Brown, Jr., on the Edmund G. him briefs were Chaney, Attorney Assistant Gen- General, David S. Chief Medeiros, General, Gordon eral, Manuel M. Solicitor State Deputy K. Jonathan Burns, General, Renner, Se- Solicitor Attorney Dep- Powell, Daniel J. General, nior Assistant and uty Attorney General. argued respondents.

Paul M. the cause for Smith With Fallotv, him on brief were A. Matthew Katherine S. Hell Hohengarten, man, M. Pozza, Duane C. and Ken William * neth L. Doroshow for amici curiae urging * Briefs of were filed the State of Loui reversal Caldwell, Louisiana, “Buddy” D. by Attorney of James siana et al. General Kyle S. General, Trey Phillips, Dun- James Attorney First Assistant opinion of delivered the Court. Scalia Justice imposing We consider whether California law restric- games comports tions on violent video with First Amendment.

can, Appellate Chief, by Attorneys for respective General their Connecticut, States as follows: Richard Blumenthal of Bill McCollum of J. Florida, Illinois, Madigan Douglas Mark Bennett F. Hawaii, Lisa Gansler Lori Michael A Cox Swanson of Min- Maryland, Michigan, Hood Mississippi, Greg Jim Abbott nesota, Texas, Kenneth T. Cuccinelli II Legal of Virginia; Eagle Forum Education & Defense L, Schlafly; by Andrew Fund and for California State Senator Leland Y. Steven F. Gruel. by et al. Yee

Briefs of amici curiae urging affirmance filed were for the State of Lynch, Attorney et Patrick C. by Rhode Island al. General of Rhode Is- land, Joseph Lipner, Brown, M. and Elliot Attorneys General their respective jurisdictions for follows: Dustin McDaniel Arkansas, as of Bruning Nebraska, Wayne Thurbert E. Baker of Jon C. Georgia, Sten- of ehjem A Dakota, of W. Drew Edmondson of Oklahoma, Guillermo North A. Henry Somoza-Colombani of Puerto Rico, McMaster South of Caro- lina, Mark L. Utah, Robert M. McKenna of of and Washington; Shurtleff Blizzard, Inc., by Watford; Paul J. for Activision for the American Book- Bamberger et al. Michael A Expression sellers Foundation for by Free Zuckerman; M. Richard and for the American Civil Liberties Union et al. Hanson, A by Christopher Shapiro, Blair-Luy, R. Steven David E. Joan Bertin, J. Eliasberg, Schlosser; Peter and Alan the for Chamber of Com- Blatt, merce of the Christopher Lisa S. S. by United of America States Rhee, Conrad, Sarwal; S. Robin and Amar Computer for & Communi- Morris, Jr.; Industry B. by cations John Association et al. for the Con- Greenstein; D. by sumer Electronic Retailers Coalition et al. Seth for Stein, R. Entertainment William by Consumers Association al. Daniel et Weiner, Doeschner, Mercurio; H. Daniel C. for and the First Jennifer Lawyers by Amendment Lawrence G. Walters and Jennifer Association Kinsley; S. for Eugene M. by Scholars Donald Falk and First Amendment Volokh; Jay for the Andrew Schwartz- by Future of Music al. Coalition et man; Keith, James T. Kevin by for Id Software LLC Dralceley, J. E. Paul Lesher; Salamanca, and J. Developers for Game the International Griffin Wright, Timothy Simeone, by et al. Christopher J. J. Association and Davis; Mark D. for Project the Marion B. First Amendment Brechner al. by Clay Richards; Calvert et D. for Robert Corp. by and Microsoft B, McGill, Theodore Olson and Matthew D. for the Motion Picture Associ- Shanmugam, America, Inc., ation of K et Kannon David E. Ken- by al. H-1 (2005), Assembly Cal. Civ. Ann. Code Bill California (West 2009) (Act), prohibits §§ the sale or rental 1746-1746.5 pack- requires games” and their minors, of “violent video games aging “in which The Act covers to be labeled “18.” killing, player range options includes to a available image dismembering, sexually assaulting maiming, an being, depicted” in a manner that a if acts are human those game considering person, “[a] whole, as a reasonable appeals morbid interest find to a deviant or would prevailing “patently minors,” that offensive standards is community and that minors,” suitable for in the as to what literary, game, serious artis- to lack whole, “causes 1746(d)(1)(A). § political, value for minors.” tic, or scientific by up punishable civil fine Violation the Act is §1746.3. $1,000. video-game

Respondents, representing the and software challenge brought preenforcement to the Act industries, the Northern District States Court for United District dull, Hcntoff; G. Association Broadcasters Thomas for the National Weiswasser, Mosier, Jr., Mark Jane E. Long, Stephen A W. Robert by A Timmerman; & Mago, Jerianne for the Cable Telecommuni- National III, Chessen, M. Gold- Rick Neal by H. Farr Bartow Association cations Burstein; Schooler, Progress & S. Diane B. berg, Michael Cohn; by Cindy al. for Social et by Foundation et al. Scientists Freedom Small; for the Thomas Jefferson Cen- A C. Patricia Millctt and Michael M. O’Neil Robert Expression al. ter for the Protection of et Free Wheeler; Alan Laura by Gura and Vindieia, Inc., J. Joshua and for Possessky. by John P. El-

Briefs of amici curiae were filed for the Cato Institute Leatherbury; wood, Shapiro, S. for the Comic Book Ilya and Thomas London; G. Corn and Ronald for Robert Revere by Legal Defense Fund Saunders; and Kevin W M. Shaw by for Thoodoro Sense Common Media Jassy; by Gary L. Bootwioh and Jacm-Paul First Amendment Coalition by Lucy ot for Press al. Reporters for the Freedom Committee P Greene, Mickey Dalglish, Leslie, Goldberg, David Gregg P. M. Kevin Brown, Oatcrroichcr, A Babin Sanford, Laurie Bruce IK Bruco D. and ski; Whitehead. W. John and for Rutherford Institute

of California. That court concluded that Act violated enjoined permanently Amendment its First enforce- Schwarzenegger, v. ment. Video Dealers Assn. Software (2007), App. No. C-05-04188 RMW to Pet. Cert. 39a. Appeals affirmed, The Court Dealers Video Software (CA9 2009), Schwarzenegger, Assn. v. 556 F. 3d 950 and we (2010). granted certiorari, 559 S. 1092 U.

II correctly games acknowledges qual- California that video ify protection. Speech for First The Amendment Free principally protect public Clause exists discourse mat- long recognized ters, but we have is that it difficult to distin- guish politics dangerous try. entertainment, from “Everyone propaganda through is familiar with instances of fiction. is one amusement, What man’s teaches another’s (1948). York, doctrine.” Winters v. S. New 507, U. protected plays, preceded Like the books, and movies that games them, video communicate ideas—and even social mes- (such sages through many literary familiar devices through as char- — music) dialogue, plot, acters, features dis- (such player’s tinctive to medium as the interaction with world). -the virtual That suffices to confer First Amend- protection. ment our Constitution, Under “esthetic and judgments moral about . art and literature . . are for the to make, individual not for the to decree, Government even approval majority.” with the mandate or of a United States Playboy Group, v. Inc., Entertainment 803, U. S. (2000). challenges applying And whatever the the Consti- ever-advancing technology, principles tution to “the basic speech press, freedom of and the like First Amendment’s vary” command, do not when new and different medium Burstyn, appears. Joseph for communication Wilson, Inc. v. 343 U. S. principles general “[A]s most basic of those this: government power

matter, . . expression . has no to restrict

791 subject or message, matter, its its ideas, its because its Union, Civil Liberties 535 v. American content.” Ashcroft omitted). (internal (2002) quotation marks 564, 573 U. S. pres exceptions. “‘From

There of course ‘permitted restrictions has Amendment ... the First ent/ upon speech and has limited a few the content areas/ disregard ‘include[d] these traditional a never freedom ” Stevens, 460, limitations.’ 559 U. S. v. United States (2010) (quoting Paul, 377, S. A. 505 U. 382-383 R. V. v. St.

(1992)). obscenity, v. Roth areas—such These limited (1957),incitement, Branden States, 354 476, 483 United U. S. (1969) curiam), (per

burg Ohio, 444, v. 395 U. S. 447-449 Hampshire, Chaplinsky fighting 568, v. New U. S. words, narrowly (1942) represent limited “well-defined — punishment prevention speech, of which classes prob any thought Constitutional have never to raise been lem,” id., at 571-572. categories un- that new Stevens,

Last we held Term, may legislature protected speech to the not be added list speech harmful is too be tolerated. concludes certain purporting statute criminal- Stevens concerned federal depictions possession of certain creation, sale, ize the or (amended 2010). § cruelty. animal 18 U. S. C. depictions living “in animal inten-

statute covered which tionally tortured, wounded, or killed” if maimed, mutilated, illegal “the creation, where that harm to the animal was 48(e)(1). § possession place,” saving t[ook] A sale, clause obscenity jurisprudence, largely our see borrowed from (1973),exempted depic- v. S. Miller 413 U. California, religious, political, scientific, educational, tions with “serious 48(b). § journalistic, value,” held historical, or artistic We impermissible that statute to an content-based restriction be forbidding speech. tradition of There was no American long depiction cruelty though have animal States — against committing it. had laws argued of a Government in Stevens that lack historical categories warrant not matter; did that it could new create unprotected balancing speech “simple applying of a test” weighs particular category speech that the value of a against category punishes its social that costs and then speech if it Stevens, fails the 559 U. at 470. S., test. We emphatically rejected “startling dangerous” propo- that “Maybe categories speech sition. Ibid. there are some historically unprotected, yet that have been but have not specifically been identified such in or discussed as our case law.” at persuasive Id., 472. But without evidence that a (if part long novel restriction on content is of a heretofore unrecognized) legislature may proscription, tradition of a not “judgment [of] people,” revise the the American embodied in the First Amendment, the “that benefits its restrictions outweigh on the Government Id., the costs.” at 470. holding

That Stevens, controls this case.1 As in California violent-speech regulation has tried to make look like obscen- ity regulation by appending saving required a clause for the latter. That does not suffice. Our been cases have clear obscenity exception that the to the First Amendment does 1 Justice Alito Stevens on several distinguishes grounds that seem to ill He suggests, post, us concurring founded. (opinion judgment), at that Stevens did not (and apply scrutiny. If it), strict is so that we doubt post, a it would make this says, 814, an case. He at the fortiori punishes California Act the sale or rental rather than the “creation” or “possession” depictions. of violent appears That nowhere in distinction Stevens itself, good and for It permissible reason: make the pro would of printing selling though hibition or writing the not of them. books — government "Whether regulation creating, applies to distributing, con suming speech Justice Alito no makes finally, points difference. And out, post, 814, at that Stevens “left open possibility a that more nar rowly drawn True, entirely statute” be would but constitutional. irrele vant. Stevens said, S., 482, 559 U. at “crush-video” statute at issue might pass there if muster it videos were limited to of acts of animal cruelty that violated the performed. law where acts were There is no any contention that depicted in imagina the virtual characters tive videos at issue criminally here are liable. only shocking, legislature but a finds de- cover whatever supra, at pictions Miller, 24. conduct,” See also of “sexual (1971); supra, Roth, 15, 20 v. U. California, Cohen S. and n. 20. we have encountered and first time was not the

Stevens speech rejected attempt about violence a shoehorn State’s obscenity. York crim Winters, considered New into In we massing “forbid[ding] of bloodshed stories inal statute against per way crime incite to and lust in such as to Appeals Court of New York 333 U. at 514. The son,” S., obscenity. upheld against “[T]here provision law indecency precise or written obscen can no more test of be changeable experience ity,” continuing and said, it “than the likely community types of to what books to of the bring corruption public or other analo morals about the of ” Ibid, (internal quotation gous injury public to order. omitted). expansive of course same view

marks That is abridge speech governmental power the freedom of to rejected balancing that we in on interest Stevens. based opinion concluded that the New York Winters, in which Our applicable heightened vagueness standard to statute failed a pro upon speech Amendment First restrictions entitled made clear that violence is not tection, S., at 517-519, U. permits reg

part obscenity of the be that the Constitution speech contained the statute “no ulated. reached any indecency obscenity heretofore known in sense Id., law.” 519. speech it obscene, is not is of no

Because about violence consequence mimics the New York that statute California’s obscenity upheld regulating minors we statute for ap- Ginsberg That case York, v. New U. S.

proved prohibition to minors sexual material on the sale perspective of a child.2 We that would be obscene from depictions of certain Ginsberg sale The statute in restricted-the excitement, conduct, or sado-masochistic abuse’” ‘“nudity, sexual sexual was depiction A harmful to minors ‘“[h]armful that were to minors.’” if it: “adjus[t] legislature

held that the could of ob- the definition scenity by permitting appeal 'to social realities of this type of material to be assessed in terms of sexual inter- ’ (quoting Id., ests ... of... minors.” at 638 Mishkin v. New (1966)). “obscenity York, 383 S. U. And because is protected expression,” not York statute could be New long legislature’s judgment pro- sustained as the so that the scribed materials were “was harmful to children not irratio- S., nal.” U. at 641. entirely. something

The California Act is else It does not adjust existing category unprotected the boundaries of an speech designed to ensure that a for definition adults is not uncritically applied argue to children. California does empowered offensively it prohibit selling is violent works to adults —and it wise not to, since that is but a argument rejected hair’s breadth from the In- Stevens. wholly category stead, it wishes to create a new of content- regulation permissible only speech based that is directed at children. “[Mjinors unprecedented

That is and mistaken. are enti significant protection, to a tled measure First Amendment only relatively narrow and well-defined circumstances may government public protected bar dissemination mate rials to them.” Jacksonville, Erznoznik v. 422 U. 205, S. (citation (1975) omitted). 212-213 pos a No State doubt legitimate power protect sesses harm, to from children Gins berg, supra, at Prince Massachusetts, v. 640-641; S.U. (1944), free-floating 158, 165 but that does not a include power may to restrict the ideas to children ex- which be

“(i) predominantly appeals prurient, to the or shameful morbid interest minors, of and “(ü) patently is offensive to in the prevailing standards adult commu- nity as respect a whole with minors, to what is material suitable for “(iii) utterly redeeming is without for importance social minors.” S., Court) U. (Appendix at 646 A opinion to of N. (quoting the Y. Penal 484-h(1)(f)). § Law youths “Speech nor sub- posed. obscene to that is neither sup- ject legitimate proscription cannot be to some other protect images solely young pressed from ideas or that the to body legislative Erznoznik, for thinks unsuitable them.” a supra, at 213-214.3 argument if there were a would fare better

California’s country specially restricting longstanding tradition this of depictions violence, to of but there is none. children’s access Certainly give to the children read—or read to books we Erznoznik, of ignores holding and denies that Justice Thomas right spoken bo Gpoalc to or to persons any under 18 have constitutional case, federal, support parents’ their cites no state or without consent. He view, knowledge is of his dissent is ing this and to our there none. Most traditionally power had the proposition parents to have devoted that say. enough. This is true And it to control what children hear their power parental that the has the perhaps follows from this state enforce a example, that the rock eoncort prohibitions require, promoters for of —to promoters that parents whose have advised their exclude those minors it not follow that the state has are to attend. But does children forbidden hearing saying anything power prevent from or without children mean, example, for that it parents’ prior The latter would their consent. rally political to a persons under 18 with could be made criminal to admit rally political parents’ support prior their consent —even out written children, greater or laws favor of against corporal punishment of laws rights for First Amendment rights good for what is minors. And religion It rights as well: speech good must be Amendment First church, give 18 to or person under could be made criminal admit tract, parents’ prior his consent. Our religious person under 18 a without 2, believes, post, merely not, n. point as Justice Thomas obviously infringement They upon are an laws “undesirable.” such to proselytizo and thooo who wish religious young people freedom authority parental over chil people. not enforce young Such laws do authority, religion; they impose governmental subject speech dren’s any control, precedent In for state only parental to a veto. the absence (Justice speech religion parents, over a child’s uninvited any none), justification for such control and in the Thomas cites absence satisfy scrutiny, those laws must be unconstitutional. would strict asserts, “circular,” not, It is ibid. argument is as Justice Thomas This justification for compelling such any absence of historical warrant restrictions, ipse dixit, them invalid. not our that renders they younger shortage gore.

them when are no of —contain Fairy grim example, Grimm’s Tales, for indeed. As her just trying poison deserts for to the White, Snow wicked queen slippers is made dance in hot she red “till fell dead example envy jealousy.” floor, a sad The Com- and (2006ed.). plete Fairy Brothers Grimm Tales 198 Cinderel- stepsisters eyes by pecked la’s evil have their out doves. (children!) cap- Id., at 95. And Hansel kill and their Gretel by baking tor in Id., her an 54. oven.

High-school reading full lists are fare. similar Homer’s Odysseus Polyphemus Cyclops by grinding blinds out his eye Odyssey with a heated stake. of Homer, Book (S. (“Even 1909) p. Lang IX, 125 Butcher & A. so transis. did fiery-pointed we seize the brand whirled it in and round his eye, and the blood flowed about the heated bar. And the singed eyelids breath of the flame his and brows all about, eye away, as the ball burnt and roots thereof crack flame”). led Virgil in the In the Inferno, Dante and watch corrupt politicians struggle stay submerged beneath a boiling pitch, they by lake of lest be skewered above devils (A. pp. surface. Canto XXI, 187-189 Mandelbaum 1982). Golding’s transl. Bantam Classic ed. And Lord the - schoolboy Piggy savagely Flies recounts how a called mur dered other children while on an marooned island. W. (1997 ed.).4 Golding, Lord of the Flies 208-209 4 Justice Auto us of pronouncing playing accuses violent video ” games “is not Post, different in reading ‘kind’ from violent literature. at 806. Well of kind, way course it is different but not in a that causes provision viewing and games, provision of violent video unlike and reading books, expressive activity not to enjoy be hence not First protection. Reading unquestionably Amendment Dante is more cul intellectually tured and edifying playing than Mortal Kombat. But these cultural and intellectual constitutional Crudely differences are not ones. violont games, tawdry shows, video cheap magazines TV novels are no speech less Comedy, upon forms of than The Divine restrictions them must scrutiny question survive strict to which we devote our —a III, attention Part Even if any we can “nothing see them infra. possible value society ., they .. protection are as much to the entitled say consumption of en violent is to that minors’ This In resistance. the has never encountered tertainment “penny depicting dreadfuls” crime 1800’s, novels dime content) (named price in were blamed some their for juvenile Brief quarters delinquency. for Cato Insti for pictures came motion Amicus 6-7. When tute as Curiae days when along, they instead. “The the became villains dangerous upon police the novels as most looked dime the drawing to a close.... are for crime textbooks the school They say picture . moving . . tends even machine that the thoughts of the to turn more than did the dime novel prison.” easily paths to lead which sometimes influenced Moving Helps Times, 21, N. Y. Feb. as to Crime, Pictures quoted For a time, our 1909, for Institute 8. Brief Cato censorship permit because of their did broad of movies Court Corp. capacity Mutual Film v. In evil,” to be “used for see (1915), 230, U. but we Ohio, dustrial S. Comm’n of Joseph Burstyn, eventually Inc., S., course, reversed 343 U. (invalidating supra, at also 212-214 502; Erznoznik, at see children). designed protect a drive-in movies restriction came comic Brief next, dramas were and then books. Radio Many early in the late 1940’sand for Cato Institute 10-11. fostering “preoccupation

1950’sblamed comic books among young, leading to ris violence and horror” with Regulation ing juvenile Note, crime rate. See Comic (1955). But L. efforts Books, Harv. Rev. Congress failed. Brief for comic books

convince to restrict Legal 11-15.5 Fund as Amicus Curiae Defense Comic Book York, v. 338 U. S. speech as of literature.” Winters New of free the best (1948). 507, 510 psychiatrist, Frederic against was led The crusade comic books Judiciary long that “as Wertham, Committee as told Senate who present there are no secure industry exists its forms crime comic books (Comic Books): Delinquency Hearings before Sub homes.” Juvenile Delinquency, Cong., Sess., 84 Investigate Juvenile 83d 2d committee to comics, objections Superman even to extended which Wertham’s development ethical “particularly injurious he chil- described

And, course, after comic came television and music books lyrics. games present prob- special

California claims that video they player par- lems because in that the “interactive,” ticipates in the violent action and determines screen its nothing The outcome. latter feature new: Since least publication Sugarcane Adventures of Island You: young choose-your-own-adventure 1969, in readers of stories plot have been able to make decisions that the determine by following page instructions which to turn about to. Digital County, Cf. Interactive Louis Assn. v. St. Software 2003). (CA8 argument 954, 329F. 3d 957-958 As for the that games participation video enable the action, in violent degree Judge seems us to more a matter As than of kind. “[T]he Posner has observed, all literature is interactive. is, better it the more interactive. when it is Literature suc- story, identify cessful draws the the reader into makes him judge quarrel with the characters, invites him them and experience joys sufferings them, with their as the reader’s own.” American Amusement Machine Assn. v. (CA7 2001) (striking Kendrick, 244 572, F. 3d down a games). similar restriction on violent video independent has done considerable re- Justice Alito identify, post, search to see 13-18, at nn. 818-819, video games astounding,” post, which “the at violence is 818. decapitated, “Victims are dismembered, disemboweled, set chopped pieces_Blood fire, on gushes, splat- into little pools.” ters, and Ibid. all recounts these Justice Alito disgusting games disgust disgust video in order to us—but restricting expression. is a valid basis for And same is description, post, true of at of those Justice Alito’s Id., dren.” at 86. Wertham’s York Legis crusade did convince the New pass lature to minors, ban sale certain comic books to it but by was vetoed Governor Dewey ground Thomas on the that it was uncon opinion Winters, Bookcase, given stitutional our supra. People v. Inc., 409, 412-413, 2d N. Y. 14, 15-16 E.N. 2d games have a racial ethnic has he discovered video [of] cleansing’ . . . their violence—“‘ethnic motive for he To what end does or Jews.” African-Americans, Latinos, “aggressiveness” it Does somehow increase relate this? suppress? it knows? But Who wishes

that- California put and the reader’s desire ire, arouse the reader’s does ironically, message. Thus, an to this horrible end Justice by danger posed argument precise highlights Alito’s expressed by speech Act: that the ideas California —whether objective gore, not its ef- violence, it or' or racism—and be proscription. governmental may fects, be real reason I I I imposes on the content a restriction Act Because protected speech, California can it invalid unless demon is justi scrutiny passes is, unless it it strate that strict —that narrowly compelling government interest and is fied V., S., A. 505 U. that interest. R. 395. drawn to serve identify problem” specifically an “actual must The State solving, Playboy, at and the S., 822-823, 529 U. cur need actually speech necessary to must be tailment free supra, demanding at That is a see 395. V, R. A. solution, restricting speech regulation “It is rare that standard. permissible.” Playboy, ever be its will because of content supra, 818. at outset, At the it standard.

California cannot meet that acknowledges causal link show a direct be- that it cannot games Rather, re- harm minors. tween violent video System, upon Broadcasting lying Inc. our in Turner decision (1994), that it 622 claims need FCC, v. 512 State U. S. proof legislature produce can make a such because the

not compet- predictive judgment exists, based on that such link psychological ing on reliance Turner Broad- studies. But casting applied misplaced. intermediate That decision is regulation. at scrutiny 661-662. Id., content-neutral higher, it and because bears burden much California’s 800 uncertainty, Playboy, ambigu- supra,

risk of at 816-817, see proof will not ous suffice. compelling. not State’s evidence is California relies

primarily Craig on the research of Dr. Anderson a few psychologists purport other research whose studies to show exposure games a connection between to violent video harmful effects on children. have These studies been re- jected every good court them,6 with rea- consider They prove games son: do not that violent video cause (which aggressively begin- minors to act at would least be a ning). “[njearly Instead, all of the research cor- is based on relation, evidence and most of the causation, studies significant, methodology.” suffer from admitted 556 flaws They F. 3d, 964. show at best some correlation between exposure to violent entertainment and minuscule real-world feeling aggressive effects, such making as children’s more playing game louder noises in the few minutes after a violent playing game.7 than after a nonviolent granted taking

Even for Dr. Anderson’s conclusions that games produce violent video some effect children’s feel- ings aggression, those effects are both small and indistin- 6See Video Schwarzenegger, Dealers Assn. v. 950, F. 556 3d Software (CA9 2009); Digital 963-964 Interactive v. St. Assn. Louis Software (CA8 County, 2003); 329 F. 954 American Amusement Machine Assn. 3d Kendrick, (CA7 v. 572, 244 F. 3d Entertainment Software 2001); 578-579 La, Foti, Assn. v. (MD Supp. 823, F. 2006); 451 2d Entertainment 832-833 Hatch, Assn. (Minn. v. 443 F. Supp. 1065, 2006), aff’d, 2d 1070 Software (CA8 2008); 519 F. Granholm, Entertainment 3d Assn. v. Software 646, (ED Supp. 426 F. 2d Entertainment Assn. 2006); Mich. Software Blagojevich, (ND v. F. Supp. 2005), aff’d, 2d Ill. F. 3d (CA7 2006). study, One example, just play found that children who had finished ing games violent video were likely more to fill the blank letter (so “explo_e” (“ex with a “d” it “explode”) that an reads than with “r” 496, (internal plore”). omitted). App. quotation preven marks phenomenon, tion of this might anticipated which have been with common sense, not compelling is state interest. by produced his other media. In tes- guishable from effects timony that the Anderson admitted lawsuit, Dr. in a similar games exposure to video violent children’s sizes” of “effect exposure produced their to same” that “about the are App. he that the And admits 1263. on television. violence cartoons when children watch have been found same effects Bugs Bunny id., at or starring Runner, 1304, the or Road Hedgehog they play games like video Sonic when ages), or (appropriate id., even all at rated “E” for are gun,” they picture “vie[w] id., 1315-1316.8 at of a when (wisely) to restrict declined Sat- course, has Of California young games urday morning rated for the sale of cartoons, fail account of that we to take thinking Auto is mistaken Justice post, at 806. The studies ques rapidly evolving technology,” “new show, to evolving technology, and fail pertain rapidly tion that new scrutiny requires, this degree of that strict with certitude justified. is speech is Nor Alito subject-matter Justice restriction games really pre “violent attributing us view that video correct they present a Perhaps problem, do Ibid. problem.” no sent serious play them. But there perhaps our own children none of us would allow surely than this them more serious “problems” of of are all sorts —some expres restriction of free by governmental cannot be one—that addressed (National encouraging anti-Semitism problem of example, sion: curiam)), (1977) Skokie, (per Party U. S. 43 Socialist America v. to the philosophy hostile Constitution spreading problem political (Noto States, (1961)), problem encouraging or United v. S. 290 U. (Texas Johnson, (1989)). v. S. disrespect U. flag for the Nation’s Breyer scrutiny has satisfied strict that California would hold Justice upon his into harmfulness violent based own research the issue dissenting post, at 858-872 games. (appendixes opinion) video the harmfulness vel non discussing (listing articles competing academic research is games). preponderance of this outside violent video The vast it any not how could lead to Justice the record —and in event we do see Breyer’s conclusion, say he cannot whether the he admits studies since Post, Similarly, wrong. at right on his are 853. Axito side Justice any dispositive constitutionally says he not “sure” whether there is Post, games other media. If that differences video 806. between so, scrutiny plainly strict has been satisfied. then pictures guns. children, or the distribution of conse quence wildly regulation that is its is underinclusive when judged against justification, its in our asserted which view is enough alone to defeat it. Underinclusiveness raises serious government pursuing doubts about whether the is fact disfavoring particular it interest than invokes, rather speaker City viewpoint. or Gilleo, v. S.U. of Ladue (1994); 43, 51 F., Florida B. J. Star v. U. S. singled purveyors Here, California out has video games compared for disfavored treatment —at when least producers to booksellers, cartoonists, and movie has —and given persuasive why. no reason seriously The Act is also underinclusive in another re- spect respect that renders irrelevant contentions —and games concurrence that video dissents are qualitatively portrayals different from other of violence. Legislature perfectly willing The California is to leave this dangerous, mind-altering material in the hands of children (or long parent uncle) says so as one even an aunt or it’s any requirements OK. And there are not even as to how parental relationship this ap- or avuncular is to be verified; parently putative parent’s, the child’s or aunt’s, uncle’s say-so suffices. That not how one addresses a serious so- problem. cial justified parental

California claims that the Act is in aid of authority: By requiring purchase that violent video games only can par- be made adults, the Act that ensures games appropriate. ents can decide what At the outset, punishing parties convey- we note our doubts that ing protected speech third just parents case children their disapprove speech proper governmental of that is a means aiding parental authority. Accepting position that would largely “only relatively vitiate the rule narrow and may government public well-defined circumstances bar dis- protected [minors].” semination of materials Erznoznik, 422 U. atS., 212-213. show that the leaving cannot California aside,

But parents need of who a substantial meet Act’s restrictions games video access to violent to restrict their children’s wish industry place video-game has in so. The cannot biit do rating system voluntary designed about to inform consumers implemented by system, games. the En- the content of (ESRB), assigns age- Rating Board Software tertainment (Early game ratings EC specific each submitted: to video older); (Everyone Childhood); (Everyone); T 10 and E10+ E (Adults Only (17 older); (Teens); AO M —18 older). App. Dealers Association Software 86. The Video display prominently encourages information to retailers system stores; refrain from rent- their to in about ESRB adults-only games ing selling to and to rent or sell minors; only parental games Id., consent. to minors with rated “M” (FTC) found Trade Commission at 47. In the Federal industry system, game “the video a result of this that, as “(1) outpaces in restrict- music industries” the movie and products children; to ing target-marketing mature-rated (2) disclosing rating clearly prominently information; and (3) products restricting mature-rated at access to children’s Marketing Congress, Report Violent En- to FTC, retail.” (Dec. 2009), http:// at online tertainment to Children (as www.ftc.gov/os/2009/12/P994511violententertainment.pdf case in Court’s and available Clerk 24, 2011, visited June file) (FTC system Report). much to ensure that does This games seriously purchase violent on their cannot minors readily parents the matter can care about own, who and that bring Filling the games home. their children evaluate the parents’ remaining gap control can modest in concerned hardly compelling interest.9 be state Breyer remaining gap compelling is be Justice concludes that “20% those under 17 cause, report, some according the FTC’s Post, (citing Report FTC games.” buy able to video still M-rated 28). unavoidable. The sale of alcohol gap compliance But is some study illegal, suggests a 2005

minors, but example, long has been finally, authority parental purported And the Act’s aid to vastly who are overinclusive. Not all of the children for- purchase games their bidden video own violent have parents they purchase who care violent whether video games. legislation’s may While some effect indeed be support parents of what some of the restricted children actually only support its want, entire effect is of what the ought parents State thinks to want. This is the narrow tailoring parents” “assisting restriction of First rights requires. Amendment

[*] ^{[*] [*]} regulate games California’s effort to violent video is the episode long attempts latest in a series of failed to censor pointed violent entertainment for minors. While we have brought above out that some sup- of the evidence forward to port games unpersuasive, the of is harmfulness video we do disparage not mean to demean or the concerns that underlie attempt regulate may the them—concerns that and doubt- prompt good parental oversight. less do a deal of We have passing judgment no business on the view the of California Legislature games (or, any that violent video for that matter, speech) corrupt other young forms of the or harm their moral development. only say Our is task or not whether such narrowly works constitute a clas[s] “well-defined limited speech, prevention punishment the of which have thought any never problem,” been to raise Constitutional (the Chaplinsky, no); plainly 315 U. at 571-572 S., answer is regulation justified if and not, whether of such works is by high degree necessity we have as a described com- (it not). pelling protection state is interest Even where about 18% retailers still sell the drinking alcohol to those under age. Brief for State of Rhode Island et al. as Amici Curiae 18. Even if the sale of games violent video by minors could be deterred further increas- ing regulation, government not a compelling does have interest in each marginal percentage point by goals which its are advanced. govern- object, limits on constitutional is the of children apply. action mental legislation the fence between straddles

California’s (2) (1) helping addressing problem and con serious social . legiti parents ends are children. Both control their

cerned rights they they First Amendment but when affect mate, seriously pursued by neither under- that are must be means seriously Lu overinclusive. Church nor inclusive Aye, 520, 546 Hialeah, v. 508 U. S. Babalu Inc. kumi protecting portrayals from of vio As children a means seriously only legislation underinclusive, is lence, games, portrayals it than video but excludes other because permits parental avuncular veto. And also it because parents seriously assisting it is as a concerned means of abridges it the First Amendment because overinclusive (and uncles) young parents rights people aunts and whose pastime. games are a harmless And violent video think goal achieving one is not cured the overbreadth in Legislation achieving such the other. underbreadth cannot survive strict fowl, which is neither fish nor this, scrutiny. judgment below. affirm

We

It so ordered. joins, con- The Chief Justice Auto, with whom Justice curring judgment. in the rep- case is before us this

The California statute leg- state pioneering what the to address effort resents potentially regard serious social islature and others games problem: exceptionally violent video the effect spend hours impressionable countless im- often minors, who games that these create. in the alternative worlds mersed terms Although intentioned, well its statute is the California precision that the Constitution de- with the are not framed partic- agree that the Court this with mands, I therefore law cannot sustained. ular be however,

I with the taken disagree, in the approach Court’s In the opinion. considering application unchang- constitutional new ing principles rapidly evolving this with technology, Court should caution. We proceed should make effort to every understand the new technology. should take into We account the that possibility developing have technology may societal that important implications will become apparent with time. should only We jump to the conclusion that new is the technology fundamentally same as some older with which we familiar. thing And we should not the hastily dismiss judgment legislators, in a who be better than may we are to assess position implications The new the Court technology. opinion exhibits none of this caution.

In the Court, view of the all those concerned about state, effects of violent video games legislators, —federal social educators, scientists, and parents unduly fearful, —are for violent video really no serious games problem. present ante, See 798-801, 803-804. hour hour Spending upon controlling actions of a character down guns who scores of innocent victims is not different “kind” from reading ante, of violence description in a work of literature. See at 798. Court sure of I this; am not. There are reasons to

suspect experience of violent video playing games be just might book, very different from reading listening to the or radio, a movie a television watching show.

I Respondents case, this in- video-game representing ask us to strike dustry, down law on the California two grounds: the broad ground Court and the adopted by narrower ground law’s definition “violent video 1746(d)(1)(A) (West game,” § see Cal. Civ. Ann. 2009), Code is impermissibly vague. Brief for Respondents 23-61. Because I agree with the I no latter see need to argument,

807 issues addressed Amendment First reach the broader the Court.1

A give people ordinary process requires in . laws that Due Grayned City prohibited. v. telligence of what is fair notice (1972). The of such no 104, lack U. S. 108 408 Rockford, of tice in law that expression special regulates “raises First chilling its obvious effect Amendment because concerns speech.” Union, Liberties v. American Civil on free Reno (1997). Vague potential laws force 844, 521 U. S. 871-872 “ speakers unlawful zone’... than if wider of the 'steer far clearly marked.” areas were the boundaries of forbidden (1964)(quoting Speiser Baggett Bullitt, v. 377 U. 372 360, S. (1958)). clarity “perfect Randall, While 513,

v. 357 U. S. 526 regu required guidance precise even been have never activity,” expressive v.Ward Rock lations that restrict (1989), may “government Against Racism, 781, 491 794 U. S. “only

regulate freedoms area” First Amendment specificity,” Button, U. 415, v. 371 S. NAACP with narrow Flipside, (1963); Estates v. 433 see also Hoffman Hoffman (1982). principles These Estates, 489, Inc., U. S. purpose

apply regulate expression for the that to laws Circuit, protecting Dallas, Inc. v. Interstate children. See (1968). 676, U. S. “violent not define video law does Here, the California specificity” games” Constitution with the “narrow problems, Amendment First In an effort to avoid demands. game Legislature violent video its modeled

the California upheld in this Gins- law that Court on the York statute New (1968) prohibited berg law that York, 390 S. 629 v. New U. —a sexually see minors, materials to related of certain sale Legislature departed California id., at But the 631-633. may on an affirmed alterna judgment be It well established by the lowor court. not addressed ground properly

tive raised but that was Nation, Tribes Yakima Washington v. Bands Confederated 476-478, n. 20 U. S. Ginsberg important respect,

from model in an legislature important overlooked differences between the falling scope materials within the of the two statutes.

B prohibited Ginsberg law at issue in the sale to minors of materials that were to minors,” deemed “harmful by law simply adding defined “harmful to minors” the words “for to obscenity minors” each element of the definition leading obscenity set out in what were then the Court’s deci- (1957), sions, see Roth States, v. United 354 U. S. 476 Book Named “John Cleland’s Memoirs a Woman Attorney Pleasure” v. Mass., General 383 U. S. 413 Seeking bring game to its violent video law within the protection Ginsberg, Legislature began the California obscenity adopted with the test v. California, Miller (1973), obscenity U. 15S. a decision that revised the tests previously legislature set out in Roth and Memoirs. The then made certain modifications accommodate the aim of game the violent video law. obscenity Miller,

Under an statute must contain a thresh- scope specifically old limitation that restricts the statute’s described “hard core” 413 S., 23-25, materials. See U. 27. category Materials that may fall within this “hard core” be requirements deemed to be obscene if three additional are met:

(1) “average person, applying contemporary An commu- nity [must] standards find ... the taken work, as whole, appeals prurient to the interest”;

(2) depic[t] [must] patently “the work describ[e], or in a way, specifically offensive sexual conduct defined applicable state law; and”

(3) [must] lac[k] “the work, taken as a whole, serious literary, political, artistic, or Id., scientific value.” at 24 (internal quotation omitted). marks law the California standards, imposes these Adapting avail- range options limitation: “[T]he threshold following dismember- killing, maiming, includ[e] able to player [must] of a human image an being.” or sexually assaulting ing, this threshold test 1746(d)(1). that meets game § video Any if it three also satisfies to the law’s restrictions subject further requirements:

“(i) A person, considering game reasonable to a deviant whole, [the would find game] appeals minors. morbid interest of

“(ii) standards in It offensive prevailing is patently suitable for minors. as what is community “(iii) whole, It the a to lack serious causes as game, for mi- or scientific value literary, artistic, political, 1746(d)(1)(A).2 § nors.”

C Ginsberg the law The difference between first important concerns their the video statute game California violent Ginsberg noted, the As respective requirements. threshold obscenity, and the current the for adult law built test upon Miller, out in which was set test, requires adult obscenity a threshold limitation that obscenity an statute to contain defined “hard specifically the coverage restricts statute’s 27. The Miller 23-25, at S., 413 U. core” depictions. a an applies only as statute

Court gave example ulti- or of descriptions offensive representations “[p]atently functions, and acts,” “masturbation, excretory sexual mate requirement law, that meets the threshold game Under the a California player to it the virtu qualifies as if “[e]nables set out in text also “violent” or characters with injury beings human ally upon images serious inflict especially which hei a manner is substantially human characteristics in physical nous, or serious cruel, depraved or in that it involves torture 1746(d)(1)(B). Appeals, § In the Court Califor abuse to the victim.” t unconstitutional, Video nia that this alternative definition conceded Sof (CA9 2009), 950, 954, F. n. Schwarzenegger, v. 3d Assn. ware Dealers us. out in text are now before only requirements therefore the set genitals.” Id., lewd exhibition of the at 25. The Miller clearly serving Court viewed this threshold limitation as vital notice function. “We the satisfied,” wrote, Court specific prerequisites provide “that these will fair notice to public in a dealer such materials that his and commercial may bring prosecution.” activities Id., 27; Reno, see also (observing atS.,U. that Miller’s threshold limitation vagueness open-ended “reduces inherent term ”).3 'patently offensive’

By requirement contrast, threshold of the California perform narrowing law by does function served limitation Miller. At least when Miller was decided, de- pictions of “hard core” sexual were not conduct common nothing feature mainstream But entertainment. similar can be said about much of the covered conduct Cali- provides game qualify fornia law. It that a video cannot range options player “violent” unless “the to a available killing, maiming, sexually dismembering, includes assault- ing 1746(d)(1). image § being.” an aof human long society regarded many worse,

For better or our has depictions killing maiming4 as suitable features popular including entertainment, entertainment that is widely available minors. California law’s threshold requirement closely would more resemble limitation targeted graphic depictions. it Miller if narrower class of Because of this feature of the California law’s threshold providing large part test, the of work in fair notice is left to provision The of York petitioner New law under which the was con Ginsberg York, victed in v. New (1968), 390 U. with S. was framed similar specificity. applied This to provision depictions “nudity” conduct,” “sexual specifically unambigu both terms those were Court). id., ously opinion defined. A (Appendix See at 645-647 the 4 The California law “maiming,” does not term nor the define the has any State cited decisions from the in its courts that define term this con text. I Accordingly, ordinary meaning, take the term have its which the any wound, includes infliction of serious see In Webster’s Third New (hereinafter Dictionary (2002) Webster’s). ternational requirements those follow, but elements are that the three drafting game up violent video In to the task. also Legislature made its could have own law, California degree regarding judgment that of violence is the kind and (or by par- acceptable games played in minors minors in legislature age groups). Instead, the relied unde- ticular community or fined societal standards. expressly here refers of the three issue

One elements community “prevailing toas what is suit in the standards 1746(d)(1)(A)(ii). § Another element able for minors.” asking “[a] points in whether reasonable direction, the same considering game person, [a] whole,” as a would find that “appeals interest of minors.” it to a deviant or morbid 1746(d)(1)(A)(i) added). § (emphasis are not defined

The terms “deviant” and “morbid” offers to think that its statute, and California no reason give anything other than their ordi- courts would terms nary meaning. (arguing Reply Brief for Petitioners judgment through person “[a] this reasonable can make applicable understanding of the common and definition ...

terms”). therefore that “deviant” “morbid” I assume ordinary carry meaning convey speech. they The “deviating adjective ordinarily from . . . “deviant” means accepted “of, “morbid” means re- norm,” some and the term lating to, Webster’s 1469. or characteristic of disease.” ap- therefore, violence, A “deviant morbid interest” regarded— pears to be deviates from what is an interest that generally accepted presumably in with some accordance application healthy. Thus, normal and standard —as heavily dependent on the identification the California law is suitability generally accepted regarding standards entertainment for minors. violent Legislature to have seems assumed that California sufficiently person known so that a

these standards are well ordinary intelligence fair notice as whether would have particular degree game ain the kind and of violence enough qualify game to the And “violent.” because the community legislature standards, Miller test looks to the may thought community have the use of undefined game present in the standards violent video law would vagueness problems. obscenity difference,

There is critical however, between regulating By laws laws violence in entertainment. the obscenity time of this Court’s landmark the cases in 1960’s, long obscenity prohibited, had been Roth, see U. atS., experience helped shape 484-485, and this had to certain generally accepted expression concerning norms related to sex. history expression regarding no

There is similar related to notes, violence. As the Court classic literature contains descriptions great violence, and even children’s stories depict very ante, sometimes violent scenes. at 795-797. Although society generally regard depic- our does not all tions of violence as or adolescents, suitable for children the prevalence depictions of violent in children’s literature and opportunities entertainment creates numerous for reason- people disagree depictions may able about which excite impulses. “deviant” or “morbid” Berman, See Edwards & Regulating Violence on Nw. Television, 89 U. L. Rev. (1995) (observing that the test Miller would be difficult apply expression nothing to violent because “there even violence”).

approaching consensus low-value Finally, difficulty ascertaining community the stand- incorporated compounded by ards into the law is California legislature’s lump together. decision to minors all young California law no draws distinction children between nearing age majority. and adolescents who response question attorney argument, In ato oral defending constitutionality law California said that accept narrowing the State would of the construction law under which the law’s would inter- references “minors” be preted just to refer oldest short is, minors—that those Arg. However, “it is within not 11-12. of 18. Tr. Oral Grayned, power state laws.” and narrow our construe “ only ‘extrapolate [their] allowable S., can at 110. We U. statutory

meaning’” inter and authoritative from the text 'by pretations courts of the State. Ibid. laws similar (1961) (quoting Louisiana, U. S. v. Garner (Frankfurter, judgment)). concurring in J., any provided evidence that not case, this California has

In Legislature law to be limited in the the California intended way, any that from its courts would this or cited decisions support “oldest minors” construction.5 an violent the California

For these I conclude that reasons, game provide that the law the fair notice Con- video fails to requires. go I I no further. would not stitution express any And would properly drawn statute

view on whether a scrutiny. We would or not survive First Amendment would necessary only question if when it should address that is so. to do

II Having case, this I will now decide outlined how I would questioning briefly my the wisdom on reasons for elaborate approach. touched of the reasons are Court’s Some these prepared upon by while I am at this dissents, go time to as far either or Justice as Thomas Justice they raise valid concerns. Breyer,

A saying holding wrong United that the in The Court is in (2010), “controls this case.” Stevens, States v. U. S. 460 sharply at in Stevens differed Ante, First, 792. the statute proposed term “minors” argument, At oral California also age “typical group of minors” who interpreted referring could be Arg. nothing text Tr. 11. But law’s play games. video of Oral any has California cited decisions indicat supports such limitation. Nor way. And is noth ing that would this there its courts restrict law might group be. ing indicating age what this record from the statute issue here. Stevens struck down law broadly any prohibited person creating, selling, or from depictions possessing gain. cruelty for of animal commercial by here, California law contrast, involved limited to games the sale or rental of violent video to minors. The imposes California law no on the restriction creation vio- games, possession games any- lent video such age one, whether above or below the of 18. The California regulate games by law does not the sale or rental of violent prevent parents adults. And the California law does not buying renting and certain other close from relatives vio- games young lent for their children or other relatives if they see fit. support proposition

Second, Stevens does not the that a satisfy scrutiny. like law the at one issue strict must The portion rejected of Stevens on which the Court relies the depictions cruelty Government’s contention that of animal categorically range any were outside the First Amend- protection. beyond Going ment S., 559 U. at 471-472. well any attempts Stevens, the Court now holds that law that prevent games purchasing minors from violent video must satisfy scrutiny strict instead the more lenient standard applied Ginsberg, closely 390 U. S. most our related precedent. today’s may pro- As a result a decision, State “girlie the Ginsberg hibit sale to minors what described as magazines,” (and but a State must surmount a formidable perhaps insurmountable) prevent if it wishes obstacle chil- purchasing depraved dren from the most violent video games imaginable. expressly open possibility

Third, Stevens left the that a narrowly targeting depictions more drawn statute of animal cruelty might compatible be with the First Amendment. See 559 sweeping S., U. at 482. In case, this the Court’s opinion likely by many, will be read both inside outside the video-game industry, regulation suggesting that no games minors’ access to violent video is allowed—at least realistically may ob- supporting not be that evidence without question. given phenomenon in nature of the tainable the B opinion effect of the California Court’s distorts government certainly agree that the Court I with law. “free-floating power to which chil- ideas to restrict has no may exposed,” 794-795, but California ante, be at dren parents power. want their If not exercise law does such game, the law does video California child to have violent parental prerogative. Instead, the not interfere with exactly decisionmaking parental California law reinforces Ginsberg. way upheld in York the same as the statute New purchasing prevented cer- from laws, Under both minors sup- parents are free to materials; laws, tain both under ply if that is their wish. their children with these items voluntary system, industry’s rating

Citing video-game argues not “meet that the law does the Court California parents to restrict their chil- wish substantial need who games cannot do so.” video but dren’s access violent not mention fact Ante, 803. The Court does industry response adopted system in to the threat of this regulation, Blizzard, Inc., as Brief for Activision federal opinion may that the 7-10, Amicus Curiae a threat Court’s eliminating. largely the Court ac- Nor does now seen as be system knowledge compliance the time of this that with de- law left much be the enactment of the California may decline if the video- sired6—or that future enforcement percent that Report showed of A 2004 Federal Trade Commission buy games able to unaccompanied ages 13 to 16 M-rated children were buy game. an 13-year-olds M-rated percent that 56 of were able Follow-Up A Fourth Re Marketing to Children: Violent Entertainment Picture, Recording & Elec Industry Practices in the Music view of Motion 2004), http://www.ftc.gov/os/2004/07/ (July 26-28 tronic Game Industries (all 24, 2011, visited June 040708kidsvioleneerpt.pdf Internet materials as file). and available in Clerk Court’s ease industry game perceives any government reg- that threat ulation has note, vanished. Nor does Court Justice points post, (dissenting opinion), out, see at 849-850 Breyer many today parents simply that are not able to monitor their computers gaming children's use of devices.

C Finally, quick possibility the Court is far too to dismiss (and experience playing games that video effects playing games) may very on minors of violent video be dif- anything Any ferent from that we have seen before. assess- experience playing games ment video must take games into account certain characteristics of the video likely are now the market and those to be available in the near future.

Today's games most advanced create video realistic alter- players native worlds in which millions immerse them- games imag- selves hours on end. These feature visual ery strikingly and sounds that are realistic, in the near video-game graphics may virtually future indistinguish- be footage.7 Many games able from already actual video of the produce high images,8 on the market can definition and it is predicted long video-game images that it will not be before bewill seen three It dimensions.9 is also forecast that Chayka, See Crisis, Visual Games: Kill (May Photorealism Screen 2011), http://killscreendaily.con3/artieles/visual-games-photorealism-crisis. see excerpts To brief video games highly from with graphics, realistic Spike see TV Video Game 2010—Game of Year Nominees, Awards (Dec. 10, 2010), GameTrailers.com http://www.gametrailers.com/video/ game-of-spike-tv-vga/707755?type=flv. Selleck, Sony Launching 3D-Capable PSS Video Games Future, (Nov. 23, 2010), Near SlashGear http://www.slashgear.com/ sony-ps3-launching-50-3d-eapable-video-games-in-the-near-future-23115866; Sofge, Why TV, 3D Doesn’t Gaming, Popular Work for But Great Is (Mar. 11, 2010), Mechanics http://www.popularmechanies.com/teehnology/ digital/gaming/4342437. By sensory games provide feedback.10 wear- will

video soon player ing special a will be able device, a or other vest by supposedly experience physical a felt character sensations respondents support fore- amici who on the screen.11 Some ” “ shoot-'em-ups’ ‘virtual-reality day will allow when see “‘actually splatting from blood feel the children ” Reporters a Commit- head’ of victim. Brief for blown-off (quot- as Amici Curiae tee for Freedom of the Press et al. (2005)).

ing Savage Pastimes 18 Schechter, H. unprecedented play games also have an Persons who video place ability participate in take the vir- in the events that Players games can create. create tual worlds these photos video-game can use their own characters closely people. produce resemble actual A characters that game person playing sophisticated can multitude make thereby in course of action can alter the choices and players by game. control the addition, In the means which relationship games to the in video now closer action bear people the real action in which control world. means games with in was often directed but- action older While joystick, games players the action newer tons or a dictate they by engaging desire a motions that character same Twenty-first Axe the Chatfield, Why Century's T. Fun Inc.: Games (2010) can . . (predicting expect “[w]e . Serious Business 211 Most every gaming standard de feedback and motion detection physical Bailenson, Reality: & Infinite future”); J. in the J. Blascovich vice near Worlds, the Dawn of Virtual Revolu Avatars, Life, Eternal New (2011) powering virtual worlds developments are (“Technological tion immer- will become more experiences accelerating, ensuring that virtual people they feel that makes sive by providing sensory information original)). (emphasis in the ‘inside’ virtual worlds” Gaming Into Pure Turns Electroshock Topolsky, The Mindwire V5 (Mar. 2008), http://www.engadget.com/2008/08/09/ Torture, Engadget Greenemeier, the-mindwire-v5-turns-gaming-into-pure-eleetroshock-torture; Being Capped, Scientific Amer Simulates Sensation Video Game Vest (Oct. 25, 2007), http://www.scientificamerican.com/article.efm?id= ican video-game-vest-simulates. game perform.12 example, player

in the to a For who wants video-game swing a character a to baseball bat—either to bring by ahit ball a or smash that about skull—could simu- lating actually swinging the motion of bat. present-day emerging

These and characteristics of video games together must be considered with characteristics of games already the violent that have been marketed. games, astounding.13

In some of these the violence is Vic- by every imaginable imple- tims the dozens are killed with including machineguns, shotguns, ment, clubs, hammers, axes, swords, and dismembered, chainsaws. Victims de- capitated, chopped set fire, on and disemboweled, into little pieces. They cry mercy. agony beg out in and for Blood gushes, splatters, body pools. parts gobs Severed graphically games, of human remains are In shown. some points only are awarded based, on the number of victims killing technique employed. killed, but on the appears It also that there is no antisocial theme too base video-game industry exploit. some in There are games player identity which can take reenact killings perpetrators carried out of the murders High Virginia objec- at Columbine School and Tech.14 The Schiesel, A Real Wii, Times, Threat Now Faces the Nintendo N. Y. 3, 2010, F7p. (describing developers Dec. leading video-game how con devices). competing soles are gaming deliver gesture-controlled sample Wilson, For games, violent video see The 10 Most Vio (Feb. Time, lent PCMag.com 2011), Video Games of All 10, http:// www.pcmag.com/article2/0,2817,2379959,OO.asp. see To brief video ex cerpts Chomik, games, from violent Top see 10: Most Violent Video Games, AskMen.com, http://www.askmen.com/top_10/videogame/top- 10-most-violent-video-games.html; Sayed, 15 Most Violent Video Games Puke, 2010), That Gamingbolt Made (May http://gamingbolt.com/ You 15-most-violent-video-games-that-made-you-puke. 14Webley, Columbine, Virginia “SchoolShooter” Video Game To Reenact 2011), Killings, (Apr. 20, Tech Time http://newsfeed.time.com/2011/04/20/ sehool-shooter-video-game-reenaets-columbine-virginia-tech-killings.

After a siteWeb that made School Shooter available for download re- daughters;15 rape her game a mother of one tive goal rape American women.16 is to Native another, the players engage game in “ethnic cleans- is a which There gun ing” African-Americans, Lat- down and can choose to game, players attempt In inos, or still ahother Jews.17 Kennedy as his a rifle into the head of President fire shot Depository.18 passes by Book Texas motorcade School sophisticated technological of the If the characteristics likely games near future in the are that are to be available games violent of the most with the characteristics combined already games will that allow trou- marketed, the result be extraordinarily personal experience in an bled teens to carry unspeakable way to out vivid it would be like what acts violence. possibility. According to this Court is untroubled games video Court, nature of is “noth- the “interactive”

ing Ante, at new” is interactive.” because “all literature Disagreeing assessment, the International with this 798. (IGDA) group Developers presum- that Association

Game ably —a games sup- the nature of video understands games ports respondents that video are “far us more —tells concretely al. Brief for IGDA et as Amici Cu- interactive.” developers game surely point, 3. on this riae And correct. criticism, developer it response mounting stated that

moved it site. the Sick Site may game on its own Web Inside make the available (Mar. http://ssnat.com. 26, 2011), of School Shooter Mod a Outrage, Amid 15 Lah, Goes Viral CNN “RapeLay” Video Game (Mar. 30, 2010), http://articles.cnn.com/2010-03-30/world/japanwideo. game.rape_l_game-teenage-girl-japanese-government?_s=PM:WORLD. 16Graham, May Again in a Battle of Down the Sexes Custer Be Shot 15, 1982, Games, pp. 110, 115. People, Nov. Over X-Rated Video (Feb. Level, 20, 2002), Scheeres, Wired Games Hate Next Elevate http://www.wired.com/print/culture/lifestyle/news/2002/02/50523. Creepy, Is Plain to Kill: Just Slate Thompson, A View a JFK Reloaded http://www.slate.com/id/2110034. (Nov. 22, 2004), “ certainly ‘[literature

It is true, notes, as Court story, when it is successful draws the into the reader makes identify judge him with the him invites them characters, quarrel experience joys with them, their and suffer- ” ings (quoting as Ante, the reader’s own.’ at 798 American Amusement Kendrick, Machine Assn. 3d 572, v. F. (CA7 2001)). only extraordinarily imaginative But an description killing literary reader who reads a work . experience vividly might played will that event as he if he game. example, the role killer in a To video take an person passage think who reads the in Crime and Pun- pawnbroker ishment in which Raskolnikov kills the old with (Mod- Dostoyevsky, an ax. See F. Crime Punishment 78 1950). Library Compare ern ed. that reader with a video- game player image; who creates an avatar that bears own his image who sees a realistic of the victim and the scene of the high killing in definition and in three dimensions; who is forced to decide whether or to kill the victim and decides pretends to grasp so; do who ax, then to to an raise it above bring the head of the victim, and then to it down; who hears cry hitting pain; the thud of the ax her head and her of who split her sees skull and feels the sensation of blood on his people, experiences face and hands. For most the two will be not the same.19 games of

When all the of characteristics video are taken certainly account, into there is a reasonable basis for think- ing experience game may playing quite that the a of video be experience reading listening different from book, the a to a viewing radio broadcast, or if movie. And is so, a this notes, As the Court are a that young there few children’s books ask step readers to into the ohooo of a malee character to that take choices along very the stories a possible ante, one of limited number of lines. See very 798. But the print impossible nature the medium makes it anything book to offor like the choices provided same number of as those by a game. video playing the effects of violent minors, some then for at least quite may The Court games different. acts be video also dismissing possibility out of hand. prematurely in this

[*] ^{[*] [*]} only particular that the I hold all would reasons, For these provide the clear notice the law at issue here fails squelch legislative requires. I ef- would not Constitution by signifi- perceived some be a what is forts to deal with differently developing problem. If framed cant and social by the Federal Govern- are or statutes enacted States constitutionality of those laws we can consider the ment, challenging presented to us. them when cases Thomas, dissenting. Justice comport orig- today with the does not

The Court’s decision understanding public Amendment. The the First inal facially majority a state unconstitutional, as down, strikes prohibits rental certain video direct sale or law that “abridges] games the freedom because law to minors speech.” But I do not think the Const., 1. S. Arndt. U. practices and be- that far. First Amendment stretches founding generation that “the freedom establish liefs of right speech,” originally does not include understood, (or speech) right speak of minors access to minors parents guardians. going through minors’ without facially unconstitu- law at issue is I would hold reverse remand Amendment, tional under First proceedings.1 for further satisfy proc

1 Justice Alito concludes to due vague law too that the is Appeals addressed ess, nor Court neither Court but District Ante, concurring in judgment). As (opinion question. that at 806-813 ” review, ‘not of first view.’ said, “one of final have often we this Court Inc., Stations, (2009) 502, (quoting FCC v. Fox Television S. 529 U. 556 Wilkinson, (2005)). Cutter v. 709, 718, S. n. U.

I interpreting provision, goal When “the a constitutional likely understanding public [that] is to discern the most provision adopted.” at the time it was McDonald v. Chi (2010) cago, concurring part 561U. S. 742, 828 (Thomas, J., concurring judgment). Because the Constitution is a McIntyre meaning written instrument, “its does not alter.” (1995) v. Comm'n, Ohio 334, Elections 514 U. S. (internal concurring judgment) quotation J., (Thomas, omitted). adopted, marks “That which it meant when it Ibid, (internal omitted). quotation means now.” marks originally protec- As understood, the Amendment’s First against “abridging speech” tion laws the freedom did not speech. extend to all “There are certain well-defined and narrowly speech, prevention pun- limited classes any thought ishment of which have never been to raise Con- problem.” Chaplinsky Hampshire, stitutional v. New (1942); U. S. 568, 571-572 see Stevens, also United States v. (2010). regulating speech U. S. 468-469 Laws such “abridg[e] do not speech” speech the freedom of because such speech.” is understood to fall outside “the freedom of Speech Free Coalition, v. S. 234, U. 245-246 Ashcroft my “practices In view, the beliefs held Found- category speech: speech ers” reveal another of excluded to bypassing McIntyre, parents. minor children supra, their at 360. founding The historical evidence shows generation parents authority believed had absolute over expected parents their minor children to use that author- ity proper development direct of their children. It suggest society would be absurd to such a understood speech” speak “the right freedom of include minors (or corresponding right speech) of minors to access without going through parents. the minors’ Cf. Brief for Common founding gener- Sense Media as Amicus Curiae 12-15. The ation abridgment would not have it an considered of “the authority by parental restrict- speech” support freedom parents. bypasses speech ing minors’

A in a state of transition children were Attitudes toward Rights. Bill of ratified the that the States around the time generation’s founding understanding complete of the A relationship parent-child must on children and the views begin roughly century earlier, colonial New therefore England. England Colo- commonin New

In Puritan tradition authority. “The families with absolute nies, fathers ruled building family patriarchal block of Puri- basic was the (2004) (hereinafter society.” Raft 13 Mintz, tan Huck’s S.

Mintz); MacDonald, see R. Literature Children in also (1982)(herein- p. England From 1646to and America MacDonald). rejected many customs, The Puritans after godparenthood, they considered inconsistent such as patriarchal 13. Mintz with the structure. right duty power was the

Part of father’s absolute knowledge . and . . make “to his minds with fill children’s Morgan, knowledge apply right action.” E. them their 1966) (hereinafter (rev. Morgan). Family ed. Puritan “innately par- thought sinful and that children were Puritans suppress primary their natural ents’ task was to children’s depravity.” Kellogg, Domestic Revolutions Mintz S. & S. (hereinafter

(1988) Kellogg); Wadsworth, see also B. Mintz & (1712)(“Children Family be should not The Well-Ordered being they please;. .. not fit left to do as themselves ... Family themselves”); govern A Well-Ordered Mather, C. (1699). Accordingly, parents not to let their chil- were filthy Songs” profane Books, Ballads, “vain

dren read . . fabulous Histories of Romances, “fond and amorous . Errantry, Knight

Giants, the bombast Achievements (3d History pp. vi-vii ed. cor- Genesis, the like.” The 1708). rected conception parental authority

This was reflected in laws Colony, example, In that time. the for Massachusetts it else) (or keepers anyone for was unlawful tavern to entertain parents’ children without their 2 and consent. Records County, Quarterly of the Files Courts Essex Massachu- p. (1912); (1914); id., setts, (1916); id., at at 143 Morgan

see also 146. or And a “stubborn REBEL- years capital LIOUS of 16 SON” or more of- committed disobeyed if he fense “the the Father, voice his voice of his The Laws Mother.” and Liberties Massachusetts 6 (1648) 1929); (reprint Kamensky, M. Farrand ed. J. see also (1997) Governing Tongue (citing 102, n. similar laws Plymouth, in Hamp- Connecticut, Haven, New and New 1600’s). shire Colonies the late

B leading up following In decades and Revolution, changed. e.g., attitudes toward See, children J. Reinier, From Virtue Character: Childhood, American 1775-1850, (1996)(hereinafter Reinier). p. 1 Children came to be seen innately less as requiring sinful and more as blank slates development. careful and deliberate But the same over- arching principles remained. Parents continued to have right duty both proper development and ensure the They significant of their authority children. exercised over including their children, control over the books that children read. And laws at strong sup- the time continued reflect port parental authority and sense that children were govern to fit themselves. Jean-Jacques works John Locke and Rousseau were driving changed understanding force behind the of children By and id., childhood. See at 2-5; H. Birth Brewer, or Con- (hereinafter (2005) Brewer); sent 97 Calvert, K. Children Calvert). (1992)(hereinafter taught Locke 59-60 the House parents and that were slates children’s blank minds about what their and deliberate had to careful be therefore only had them- Parents observed. were told and children cockering” humouring “by their chil- if, to blame selves “taste[d] bit- “poison’d later they the fountain” dren, (1692), Concerning Thoughts Education ter waters.” Some Eight- Philosophers English of the Seventeenth in 37 1910). (C. he ex- vices, All Eliot ed. eenth 27-28 Centuries by parents plained, “those about children.” were sowed suggest Significantly, Locke did not circumscrib- Id., 29.

ing parental authority articulated new basis for but rather respects, important disagreed with Locke Rousseau it. parental similarly philosophy premised on con-

but his was Although development. Rousseau advo- over a child’s trol naturally, develop be allowed to that children should cated directed “a be tutor he instructed that the environment given over the child and who removes total control who is authority society, competing sources and him from from all (1982) Pilgrims Prodigals Fliegelman, and influence.” J. (hereinafter Fliegelman); 15. see also Reinier writings Amer received considerable attention in

These Concerning Understanding Essay Human An ica. Locke’s signifi Concerning Thoughts Education were and his Some cantly popular of Government, Treatises than his Two more according study between 1700 of 92 coloniallibraries and to a Enlightened May, Lundberg Reader in Amer The 1776. & (hereinafter (1976) Quarterly 262, 273 Lund 28 American ica, berg). education, a treatise on was Emile, Rousseau’s And politi widely than his and distributed more advertised Fliegelman see also 29; The work, cal Social Contract. popular

Lundberg general, in 285. In most books Revolution were not on the eve of the American Colonies rearing. political with child discourses but ones concerned Kellogg &Mintz 45. writings conception Locke’sand Rousseau’s fostered new increasingly of childhood. Children viewed as were mallea important creatures, ble and childhood came be seen as an period growth, development, preparation adult Grossberg, Governing 17, id., 47; hood. See M. (1985) (hereinafter Grossberg).

Hearth 8 Webster, Noah “[t]he education, called the father of American wrote that impressions early usually received in life form the characters of individuals.” On the Education of Youth America (1790)(hereinafter Webster), Essays on Education in the (F. 1965) (hereinafter Early Republic Rudolph ed. Ru dolph); Founding Slater, cf. Noah Webster: Father Ameri Scholarship can Education, in Noah Webster’s First Edi Dictionary English Language tion an American of the (1967). Elizabeth Smith, sister-in-law to John Adams, simi larly wrote: “The Mind, beleive[,] Infant I is a blank, eassily any impression.” Liberty’s receives Norton, M. (1996) (hereinafter Norton) (internal Daughters quota original); Dog omitted; tion marks alteration in see also S. (1796) gett, (hereinafter A Doggett), Discourse on Education (“[I]n Rudolph youth,... early every power capac ity pliable susceptible any impression”); direction or (1834)(hereinafter Abbott) J. Abbott, Mother at Home 2 ('What impressions strong, lasting, can more be and more upon than those received the mind in the freshness and susceptibility youth”). of decisionmaking ability. They

Children lacked reason and Judgment “have not own,” or of their Will John Adams (May 26,1776), Papers noted. Letter to in James Sullivan (R. Taylor 1979); of John Adams 210 ed. see Vol. 1 also 1787: (W. 1986) Drafting p. (quot- Constitution, Benton ed. ing Gouverneur Morris in James Madison’snotes from the explaining Constitutional Convention that children do not they prudence” vote because “want and “have will no of their own”). incapacity” Children’s “utter rendered them “almost wholly mercy Parents or Instructors for a set of their at the through regulate conduct their life.” J. habits to whole (hereinafter (1749) Burgh) Burgh, Thoughts on Education deleted). (emphasis great conception led concern about

This of childhood learning are ever do what influences on ‘Touth children. doing,

they and others these imitations see around them Rudolph grow Doggett, see 151; in also into habits.” Public A Plan Schools Rush, B. for the Establishment (“The (1786)(hereinafter Rush), Rudolph young vices of in other”); people generally Webster, each in learned from (“[C]hildren, resign Rudolph unsuspecting, artless agreeable person any manners are their hearts to whose respectable”). Books therefore advised whose conduct is put way you parents in the those whom “not to children (1831) Book 149 Child, L. The Mother’s dare trust.” (hereinafter Child); Origins Coontz, The see also Social S. (1988) (noting it that was

Private Life 149-150 “considered supervision dangerous to the children servants leave apprentices”). accepted widely As a it children needed result, was development. monitoring carefully planned See B. close (herein- (1968) Wishy, Republic 24-25, 32 and the Child Wishy); Managing young Grossberg mind 8. was after Rudolph Doggett, “infinitely important.” 151; in considered (1975)(hereinafter Tale 72-73 MacLeod, see also A. A Moral MacLeod). youth essay education of Amer- In an as “a field, the human mind rich ica, Noah Webster described be will ever covered with which, care, without constant growth Rudolph He 54. advocated luxuriant weeds.” “every sheltering low-bred, drunken, immoral children from keeping till their rea- minds “untainted their character” good strength princi- acquired soning and the faculties have deep may planted ples have taken their minds which be (“[T]he most id., at 16 Id., Rush, also root.” see 63; youth who have formed from those useful citizens have been they never known or felt their own till wills were one and (“[T]he years twenty age”); Burgh of Youth are souls immediately more committed care their to the Parents People and Instructors than even those of a are to their Pastor”). only amplified

The Revolution these concerns. The Re- public require would virtuous which citizens, necessitated proper training from 54, 71; childhood. See Mintz MacLeod 40; Saxton, French and Childhoods, American in Children (J. 2009) (herein- and Youth in a New Nation 69 Marten ed. Marten); Story Halyard, after see also Cardell, of Jack W. (30th 1834)(hereinafter (“[T]he pp. Cardell) glory xv-xvi ed. efficacy and of our institutions will soon rest with those who us”). growing up pivot to succede Children were “the proper development of the moral world,” their was subject high “a any of as interest, which human ha[d] mind Id., ever been called.” at xvi. genera

Based on founding these views of childhood, the parents duty govern tion right understood to have a growth. their expected children’s Parents were direct development and education of their children and ensure that bad habits did not take 58-59; root. See Calvert Mac Kellogg They responsible 72; Leod Mintz & 23. were for instilling prohibitions, “moral standards, behavioral and a ca pacity self-government prepare for would child Kellogg outside world.” Mintz & 58; see also Youth’s Com (hereinafter panion, Apr. p. Companion) 16, 1827, Youth’s (“Let [children’s] prepared, minds formed, be their hearts and their characters moulded for the and the scenes duties day”). brighter family “[h]ome of a short, In bore the major responsibility training for the moral of children and by implication, thus, for the moral health of the nation.” MacLeod see 29; Introduction, Reinier, also in Marten 6; p. Autonomy xi; Smith, and Affection: Parents Children up Growing Chesapeake Eighteenth-Century Families, in in 1985). (N. & Hawes eds. 54 Hiner J. in America exempli- rights conception parental and duties was of This raising approach children. He fied Thomas Jefferson’s 'constantly gave spe- daughters and often wrote letters his See, should do. what the children cific instructions about (Nov. 1783), g., 28, in Ran- S. e. Letter Jefferson Martha (1939)(dic- dolph, Thomas Jefferson The Domestic Life of dancing, drawing, tating daily and music, her schedule (Dec. 1783), studying); id., in 22, Letter to Martha Jefferson (“I you gaily at this clothed time 45-46 do wish to be at not things your all let [AJbove all times of life and .... on”). put properly ex- neat, Jefferson whole,

clothes be and every “by post” pected daughter, and Martha, to write his you [and] books read what her, “Inform me what instructed (Nov. 1783), you in at 44. id., He 28, tunes Letter learn.” nephew, Carr, Peter approach his after took the same with 1785), (Aug. in Pa- 8 The Letter Carr’s father died. See 1953) (detail- (J. Boyd pers ed. 405-408 Thomas Jefferson monthly asking ing reading exercise, course you employ progress reports describing what manner “in Dictionary every Virginia day”); also 3 hour see Biography charges management rigorous of his was

Jefferson’s “[M]uch that and fa- mothers indicates uncommon. evidence upbring- giving their children strict thers both believed in stressing ing, enforcing their commands obedience to parental subjection to will.” Norton 96. continued prototypi- published gave parenting in the 1830’s Two books Lydia Book, Child advised that In cal advice. The Mother’s important step management “[t]he is, first and most says, always must be done.” Child 26. a mother whatever at Home, Mother likewise Abbott, John the author of The absolutely proper “[o]bedience essential to advised that Echoing family government.” Locke, 18. Abbott Abbott parents indulged un- child’s “foolish warned who indulgent reasonable wishes” would doom that to be child Id., adulthood. at 16. concept parental of total control children’s lives over government

extended into the schools. “The both fami lies and schools should be absolute,” declared Noah Webster. Rudolph Benjamin 57-58. Dr. concurred: “In the Rush edu youth, authority cation of let the our be as of masters abso possible.” lute Through Id., at 16. the doctrine of in “ parentis, dut[y] par loco teachers assumed the ‘sacred ” up qualify ents ... to train their children’ exercised “ authority the same ‘to obedience, command to control stub ” quicken diligence, to bornness, and to reform bad habits.’ (2007) Morse v. Frederick, 551 393, U. S. 413-414 (Thomas, concurring) (quoting Pendergrass, J., State v. 19 N. C. 365, (1837)); Wishy 365-366 see quality also Thus, 73. the teachers and schools had to “be watched with the most scru pulous Rudolph attention.” Webster, in 64. part, expected

For their children were to be dutiful and Kellogg Wishy obedient. Mintz & 53; 31; Kett, cf. J. Rites Passage 45 Schoolbooksinstructed children to do frequently so and vignettes illustrating featured the con sequences of disobedience. See Adams, “Pictures ultimately by Vicious misery overcome and shame”: The (hereinafter Early Cultural Work National Schoolbooks Adams), in Marten example 156. One of trelated was hangings alleged of 19 witches in which, school likely began books girls. complaints noted, by young with false two (1789); Morse, Geography J. The American see also Adams, in Marten 164. genre

An “loosely entire of books, termed ‘advice youth,’” taught similar lessons well into the J. 1800’s. Demos, Shape Early Circles and Lines: The Life (2004); Wishy America your cf. duty 54. “Next your God,” duty your parents,” advised one book, “is even if the child did not “understand reason of their com- Sigourney, (14th mands.” Reading L. The Girl’s Book 44 ed. 1843); Duty and Enforced, In- Filial Recommended see also (3d (c. 1798); p. Parent’s Present ed. troduction, iii 1841). generally punished way in some or is “Disobedience severely.” very S. Good- other,” another, “and often warned (1836); Parley’s see also The rich, Book of Fables 43 Peter (“[T]he (1848) Country number of children School-House parents their of disobedience to who die from effects very large”).

Society’s development with extended to concern children’s by being always spreads pub- they “Vice books read. Rudolph “[Y]oung 62. lished,” Noah observed. Webster public taught many people ex- fiction, books, vices they they have known had hibitions, vices would which never public places.” such never read such books or attended (cautioning parents “[t]he p. Ibid.; see xii Cardell, also reading an extensive children have influence first lessons for years”); acquisitions Youth’s of future Com- and habits (“[T]he peculiar capacities panion and the children, situa- appropriate youth, require read- select tion and duties of harshly fairy ing”). criticized authors Prominent children’s g., anthropomorphic See, animals. e. S. tales and the use of (1856) (de- n.* Goodrich, 320, 2 of a Lifetime Recollections fairy scribing to familiarize the mind tales as “calculated things shocking taste for monstrous; to cultivate a and with young to teach the to use violence; and tales bloodshed vulgar [the language, and to fill ideás;... coarse cherish and youthful mind] and of a debased debauched the horrors with fancy”); (recalling that children’s books were id., at 167 (“The “lies”); p. fancy xiv Cardell, “full nonsense” converting children,’ has animals into Teachers inferior extravagance”); see also MacDon- been carried ridiculous fantasy (noting not and works were ald that fables 1700’s). popular in in the America they published carefully for chil- what

Adults controlled to moral children were dedicated written for dren. Stories relatively lacking instruction and were austere, details might titillate 24-25, children’s minds. See MacLeod 42-48; (“The juvenile imposed id., see also at 42 authors of fiction upon duty, the constraints themselves in the name of giving they thought sake of to children what children although they should have, were often well aware that chil- might prefer fare”); exciting dren more Francis, American Children’s Literature, in American 1646-1880, Childhood (J. 1985). Newbery, 208-209 Hawes & N. Hiner eds. John publisher creating genre often credited with of chil- dren’s literature, traditional folk characters, removed like original placed Tom Thumb, from their stories and them in morality good new tales which children were rewarded punished. and disobedient children Reinier 12. authority

Parents had total over what their children read. (1994) (“Ideally, See A. MacLeod, American Childhood always actually, if nineteenth-century parents regulated not fully, certainly their including children’s lives their read ing”). Lydia put bluntly Child it in The Mother’s Book: anything “Children . . . should read without a mother’s knowledge particularly necessary and sanction; this is be ages tween the of twelve 92; and sixteen.” Child see also (“[P]arents, guardian id., friends, some should care fully every they put young examine volume into hands of people”); Monaghan, Learning E. To Read and Write in Colo (2005) girl’s 12-year-old nial America (reviewing jour early nal noting from the 1770’s that the child’s aunts guided reading). monitored and her founding generation’s

The law at the time reflected the understanding parent-child According relations. to Sir parents responsible William Blackstone, were for maintain- ing, protecting, educating children, their and therefore “power” had over their children. 1 Commentaries the England (1765); Washington Laws of 434, 440-441 cf. v.

833 (Blackstone’s (1997) Glucksberg, Commen- 521 712 702, U. S. authority legal primary for 18th- and 19th- “a

taries was lawyers”). century Chancellor James Kent American agreed. Law *189-*207. 2 on American Commentaries custody parents [children],” of their law entitled to “the th[e] [children’s] the services,” and and value of labor “the may discipline requisite “right the of be to exercise such discharge Id., *193, *203. the sacred trust.” for their charged and with “obedience assist- Children, turn, were during minority, gratitude reverance own ance their during Id., at *207. the rest their lives.” parents

Thus, in made clear that case, case after courts right a until the child the labor and services had to child’s Supreme majority. Court of In the Judicial 1810, reached question explained, a is no but that “There Massachusetts father, son, his minor who is entitled to services may, obliged provide, law, he at the common whom to for assign to enure others, those consideration services Day 147; Everett, 145, 7 see also Ben himself.” v. Mass. (1806) (opinion Remington, v. of Par Mass. son J.) (“The very parents are that sons, settled, law is C. well they obligations support children, their under Supreme earnings”). Similarly, Court to their entitled right par Hampshire noted that of New Judicature child, minor, of their while ents recover for the services Parrot, 28,H. be v. N. “cannot contested.” Gale against parents bring know those who could tort suits And Kirkpat away g., e. ingly See, from them. enticed minor (S. 1809); Ct. Lockhart, v. 276 C. Constitutional Brev. rick 1823). (Ky. App. Tevis, v. Litt. Jones military

Relatedly, pa- boys without could not enlist during Many who did so Revo- those rental consent.

lutionary were afterwards, their fathers War found, Boy military wages. Cox, Soldiers of to their entitled And 21-24. after Revolution, American Marten 834 parental

war, minors who in viola- enlisted without consent tion of federal law could find returned home themselves parents’ corpus request. writs See, of habeas issued at their (No. g., 14,449) Anderson, e. United States v. 24 F. Cas. (CC (Pa. 1812); Tenn. Callan, Commonwealth v. Binn. 255 1814) curiam). (per age restricting marriage pa

Laws also set limits without example, rental consent. For from least 1849, 1730 until at Pennsylvania required parental marriage law consent for the anyone age Large of under the of 21. See Statutes at of (J. 1897)(here Pennsylvania 153 Mitchell H. Flanders eds. & Stats, Large); Pennsylvania inafter Pa. at of General Laws (J. 1849) Dunlop (including marriage 82-83 2d ed. the 1730 amendments); Perpetual law with no see also Laws (1788), Commonwealth Massachusetts 253 in The First (J. Laws of Cushing the Commonwealth of Massachusetts ed. 1981), general, “[p]ost-Revolutionary marriage In law as age, no[t] sumed that below certain children could ... intel lectually significance.” Grossberg understand its 105. imposed age

Indeed, law on all limits manner activi required judgment ties and reason. Children could juries, generally vote, could not serve on could not be they witnesses in criminal cases unless were older than 14. they See Brewer loyalty 43, 148, 145, 159. Nor could swear Stats, (1903 ed.). g., to a Large State. e. See, Pa. Early granting ability federal laws aliens the become citi provided zens that those under 21 were deemed citizens if g., their fathers chose to naturalize. Act of See, 26, e. Mar. 1790, 1Stat. 104; 20, Act of Jan. 1795, ch. Stat. 415.

C history clearly founding generation shows a be- parents complete authority lieved to have over their minor expected parents development children and to direct the England those children. The Puritan tradition in New laid parental duty. authority foundation of American (“The virtually the inventors MacDonald 6 Puritans leading today”)- family In the decades it as we know conception of the following up Revolution, to and parents duty authority evolved mind but child’s potential society paid attention to closer Indeed, remained. (“By than Mintz weak- on children before. See

influences authority, patriarchal ening the Revolution forms of earlier childrearing importance education en- the of enhanced suring stability”). and schools came under social Teachers carefully reading super- scrutiny, material was and children’s supported often reflected these concerns vised. Laws authority power parental of the state. with the coercive

II A possibly light history, not this Framers could In the speech” to include un- “the freedom of an have understood Specifically, right qualified speak I am sure to to minors. founding generation have “the would not understood

that the right speak speech” children freedom of include consequence, parents. going through As a their without limiting speech that such exam- I do not believe laws —for speak by requiring ple, parental to a consent minor— original “abridg[e] speech” within the mean- the freedom ing of the First Amendment. recently Court does not have that this

We have noted categories authority speech “freewheeling new to declare scope Stevens, Amendment.” the First outside recognized may that there be also S., at 472. But we U. historically unpro- categories speech been that have “some yet specifically [and] identified dis- or tected have not been my opinion, In Ibid. as such in our case law.” cussed plainly category.2 such reveals one evidence here historical from the majority responds “it follow” historical that does prevent power to children from hear evidence “that the state has the B Admittedly, original public understanding aof consti- always provision comport tutional does not with modern sen- Morse, S., sibilities. See J., at 419 U. concur- (Thomas, ring) (treating though students it were still the “as 19th century today”). may support find would little It be also precedent. with inconsistent McDonald, 561 U. S., at concurring part concurring 851-855 J., (Thomas, judgment) Slaughter-House (rejecting Cases, 16 Wall. (1873), original public meaning as inconsistent with the Privileges of the Immunities Clause Fourteenth Amendment). Although however,

This, much not such case. has changed country in this Revolution, since the notion parents authority have over their children and that law support authority persists today. example, can For least some States it a make crime to lure or entice a minor away parent. g., from the e. Cal. Penal See, minor’s Code (West 272(b)(1) § (2010). §787.03 2008); Ann. Fla. Stat. Every State in age the Union still establishes a minimum for marriage parental judicial Roper without or consent. Cf. v. (2005) (Appendix opinion Simmons, 551, 543 U. S. 558 D to Ante, without ing... anything parents’prior their 795, at consent.” n. 3. conclusion, Such asserts, the majority that, would lead laws in its view, would be Ibid. “obviously” undesirable and unconstitutional. majority’s The circular argument point. question misses the not is whether certain might judges legislators laws make today, sense to or but public rather what the likely of speech” understood “the freedom to mean the adopted. when First Amendment was See District Columbia v. Heller, 570, 634-635 (2008). U. 554 S. I it founding believe is clear that the public would not speech” have “the understood freedom of to include speech to minor children their It bypassing parents. follows that imposes First Amendment no regulation restriction on state of such speech. may To note that be “precedent there for state con [such] trol,” ante, 795, 3, at n. “is not to is a [there] establish that constitutional right,” McIntyre Comm’n, v. Ohio (1995) 334, Elections S. 514 U. (Scalia, J., dissenting). Court). years old cannot en- than less Individuals military parental C. consent. U. S. without list 505(a). subject § laws to curfew across remain And minors country, et al. Amici of Louisiana see Brief for State unilaterally to most medical consent 16, and cannot Curiae procedures, 15. id., at today things many cannot do minors

Moreover, there are they parental or not. consent State all, have whether duty. voting jury Roper, ages for laws set minimum opinion (Appendixes supra, B of the and C at 581-585 Court). (the here), can- at issue minors In California State bus, Veh. Code for or Cal. Ann. not drive hire drive a school (West 2010), purchase tobacco, Cal. Penal §§12515, 308(b) (West money, § 2008), bingo play Ann. Code § §6220 326.5(e), Code Ann. or Cal. Prob. will, execute a (West 2009).

My speech” understanding con freedom also of “the precedents. sure, this To be Court sistent with Court’s protection to the has held that children entitled g., Amendment, Jacksonville, First e. Erznoznik v. see, (1975), may government not uni 205, U. S. 212-213 say laterally id., at hear, can see dictate what children Community Independent Tinker v. Des Moines 213-214; Dist., But this Court has 393 U. S. School speech” today, that “the freedom of includes held, never until (or right right speak minors to access to minors parents. through speech) going To the the minors’ without municipality contrary, “[i]t a State or is well settled adopt stringent on communicative mate more can controls youths on those available adults.” rials available to than supra, post, J., at 841-842 Erznoznik, 212; at cf. (Breyer, dissenting). “historically jurisprudence has constitutional Court’s family concepts a as unit

reflected Western civilization parental authority minor Par with over children.”. broad law, that R., 584, v. Under case ham 442 U. S. 602 J. “legislature^] [can] properly parents and oth- conclude example, primary responsibil- ers, teachers for who ... have ity well-being support for children’s are entitled to the designed discharge responsibility.” laws to aid of that Gins- berg (1968); New York, v. see U. S. also Bellotti (1979) J.) (opinion Baird, v. S. 622, U. of Powell, (“[T]he adjust legal system State is entitled to its to account vulnerability for children’s concern, and their needs for . . . (internal sympathy, paternal quotation . and . . attention” omitted)). parental marks This “the is because tradition of authority is not inconsistent with our tradition individual liberty; presuppositions rather, the former is one of the basic (“Legal Id., of the latter.” at 638; id., at 638-639 restric- especially supportive parental tions minors, on those of the may important role, growth be to the chances child’s for the full maturity participation that make eventual in a society meaningful rewarding”). free

I II The California law at issue here forbids sale or rental game[s]” anyone “violent video to minors, defined as years age.” §§1746.1(a), “under 18 Cal. Civ. Code Ann. (West 2009). punishable A violation of the law is a § up Critically, civil fine to $1,000. 1746.3. the law does prohibit buying renting not games adults from or violent video prohibit playing

for minor or minors from such games. concurring judgment); Cf. ante, J., (Alito, post, dissenting). at 848 (Breyer, J., The law also does not parent, grandparent, restrict a legal aunt, “minor’s uncle, or guardian” selling renting game. from him violent video 1746.1(c). §

Respondents, companies game associations of in the video industry, brought preenforcement challenge to California’s claiming speech law, its face the law violates the free rights games of their members. The Court holds that video speech purposes of the First Amendment and finds facially ante, at 789-790, unconstitutional. the statute disagree. I 799-804. any for a facial First standards of this Court’s

Under game challenge, must The video one fail. this Amendment no set of circumstances exists show “that cannot associations law] [the valid,” “that the statute lacks be which would under any legitimate sweep,” plainly that “a substantial number or judged applications in relation to unconstitutional, are of its legitimate sweep.” plainly Stevens, 559 S.,U. the statute’s omitted). (internal quotation Even as- marks at applications games speech, suming most video that implicate the First Amendment. All not California law does prohibit or rental of a the direct sale that the law does is game other than the minor someone violent video to a parent, legal guardian. grandparent, aunt, or uncle, minor’s usually guardian, parent true, a as is a or Where minor has obtaining prevent a violent not that minor from the law does help. typi- parent’s guardian’s game In the video or with his only speech bypasses speech is that affected ease, cal parent speech guardian. does not or Because such minor’s originally speech” understood, as “the fall within freedom of ordinarily implicate the First law does not California’s facially unconstitutional.3 not Amendment is

[*] ^{[*] [*]} originally speech,” does understood, “The freedom of going through speak right minors without include agree guardians. parents I cannot Therefore, minors’ facially under the is unconstitutional statute issue Amendment. First respectfully

I dissent. un challenge as-applied an the statute would Whether survive day. To question for another emancipated case of an minor is usual not unconstitutional on enough statute is ease, this it decide its face. Breyer,

Justice dissenting. imposes up upon any California a civil fine $1,000 to person game who distributes a violent video in California labeling without “18,” it or who or rents a labeled sells vio- game person age lent Repre- video to a under the of 18. game sentatives the industries, video software claim- ing statute violates the First Amendment on its injunction against an Applying face, seek its enforcement. analysis, uphold traditional First Amendment I would statute as consequently constitutional on its face and would reject challenge. the industries’ facial game

California’s statute defines a violent video as: A game player in which a “kill[s], maim[s], dismember[s], or sexually assault[s] image being,” an of a human person,

“[a] game considering reasonable as a game] appeals [the whole, would find to a deviant or morbid interest minors,” game]

“[the patently prevailing is offensive to standards community in the toas for minors,” what suitable game, literary, lack[s] “the whole, as a . . . serious artis- political, tic, or scientific value minors.” Cal. Civ. (West 2009). 1746(d)(1) § Code Ann. game

The statute in effect forbids the a to sale such mi- they accompanied by nors parent; requires unless are a it game identifying game makers of the to affix a it a label as only exempts aged suitable for those 18 and it over; retailers liability from properly unless such label is to affixed upon up imposes $1,000 viola- game; a civil fine and it §§ tor. 1746.1-1746.3.

B challenge based on the First A to this statute facial only of its “a number if substantial Amendment can succeed judged applications in relation unconstitutional, sweep.” plainly legitimate v. Ste United States statute’s (internal (2010) quotation marks vens, 460, 559 U. S.

omitted). mount facial it is more difficult Moreover, regulate that seeks to a statute First Amendment attack on speech. activity See Broad action as well involves (1973). Hence, 614-615 Oklahoma, rick v. U. S. upon which I believe

I shall here an area within focus namely, legitimately apply mi statute, sales can its State (the age age cutoff used the indus nors under the try’s of 17 highly ratings system), realistic violent video own of game games, know a maker would meet which reasonable heart of the statute. the lies at the Act’s criteria. That area instances which the I the number of shall assume that compara that area is within will enforce the statute State (for tively large, ex that area the number outside and that comparatively ample, 17-year-olds) small. And to sales speech activity regulates with ac the combines the statute (a target practice). tion virtual form of

C determining unconstitutional, statute is In whether “vagueness” precedents and apply I would both this Court’s scrutiny. doing so, In a strict form of First Amendment (as category special I find relevant is First Amendment claims) “depictions category violence,” of of the Court category “protection of of chil- ante, but 795, rather “power of the state that the dren.” This Court has held scope beyond the of reaches the conduct of children control Massachusetts, authority 321 Prince v. over adults.” its “ (1944). Tegulatio[n] communica- of 158, And the U. S. require [children]

tion addressed to need to the not conform [F]irst [A]mendment way ments of the same as those applicable Ginsberg York, adults.’" v. 890 U. S. 629, New (1968)(quoting Theory 638, n. Emerson, Toward General (1963)). of the 877, First Amendment, Yale L. J. majority’s upheld, claim if statute, that the California speech,” categor[y] unprotected would create “new ante, argues depic- at 791, 794, is overstated. one here No automatically tions of violence, even violence, extreme fall protective scope outside the First as, Amendment’s for ex- ample, obscenity depictions pornography. do child properly speak categories expression pro- We that lack pornography,” category when, tection like “child is broad, applies automatically, prohibit when it and when can the State everyone, including obtaining adults, from access the mate- analysis pre- rial within it. But where, here, as careful must judicial cede a (say,denying protection narrower conclusion falsely a shout “fire” theater, made in a or to crowded an group peacefully petition effort to teach terrorist how to Nations), normally the United we do not describe the result creating category unprotected speech.” a “new (1919); Schenck United States, v. U. S. Holder v. Project, Humanitarian Law 561 U. S. 1 rejecting Thus, in after Stevens, claim that all de- (a pictions cruelty category) of animal fall outside the First protective scope, Amendment’s we went on to decide particular whether the at statute issue violates First Amendment standards; under we that, traditional held overly because the statute broad, was was invalid. it Simi- larly, applying whether, here the issue is traditional First pass Amendment standards, does, not, this statute or does muster.

II my In provides view, California’s “fair statute notice of prohibited,” what is consequently impermissibly it is vague. United States v. Williams, 553 S. U. why

Ginsberg explains there consid- so. Court that is of a sale minors forbade the ered New York law picture drawing, sculpture, “picture, photograph, motion image representation of a or or film, similar visual depicts body person portion which human of the or nudity . . . prurient,

“predominately appeals shameful of minors,” morbid interest prevailing patently in the standards

“is offensive to community respect to what is suit- as a whole with adult minors,” able material for importance redeeming utterly social for mi-

“is without S., nors.” 390 U. at 646-647. (which Ginsberg upheld statute in York

This Court the New very unfortunately different, awith confused is sometimes (1966)). Ginzburg States, U. v. 383 S. case, earlier United by opinion majority, written Justice in an The five-Justice sufficiently was clear. Brennan, wrote that statute any voiced of the Court S., at 643-645. No U. Member (Stewart, J., con- vagueness objection. at 648-650 id., joined (Douglas, result); curring J., id., at 650-671 (Portas, dissenting). dissenting); Black, J., at J., id., 671-675 (set Comparing language forth statute of California’s 840) supra, language statute of New York’s with the (set any above), immediately to find it is difficult forth Why vagueness-related “kill,” the words difference. any understand more difficult to and “dismember”

“maim,” objects “nudity?” that these than the word Alito Justice narrowing perform this function” that words do “not obscenity required cases, where statutes has in adult Court “ ” only depictions. (opin can Ante, cover core’ at ‘hard concurring judgment). comparison ion in But the relevant obscenity Ginsberg, is not to adult cases but to which dealt “nudity,” category killing with maiming. no more than “narrow5’ and any vagueness

And in event, narrowness and do necessarily anything have with to do one another. All required vagueness purposes that is for is that the terms give “kill,” “maim,” and fair “dismember” notice as what they they cover, which do. copies,

The remainder of California’s definition almost language word for word, the in this Court used Miller v. (1973), permitting 413 U.

California, S. total ban on (one material that satisfied its definition enforced with crimi- penalties). “community nal The California law’s reliance on Wayne standards” adheres Miller, Books, in Fort Inc. (1989), specifically Indiana, v. 46, U. 57-58 this S. Court upheld language against vague- charges the use of Miller’s only departed ness. California from the Miller formulation significant respects: in two It substituted the word “deviant” “prurient” for the “shameful,” words it and three times added the words “for minors.” word “deviant” differs “prurient” from “shameful,” it seem but would no less defining narrowing suited to of the reach statute. And the addition of “for minors” to a version of the Miller approved, Ginsberg, supra, standard was 643, at even though “dr[ew] the New York law no distinction between young nearing age children and adolescents who majority,” (opinion ante, at 812 J.). Alito, upheld Ginsberg

Both the Miller standard and the law perfect clarity. lack difficulty But that fact reflects the long capable protecting Court’s search words ex- pression depriving legitimate without State of constitu- power regulate. point tional known, As is well one thought defining Justice Stewart could no better in he do obscenity “I than, it I v. Ohio, know see it.” Jacobellis when (1964) opinion). (concurring 378 U. S. And Justice thought Douglas standard, which he dissented from Miller’s Ultimately, vague. 39-40. at how- S., was still too 413 U. .“community accepted standards” tests

ever, this Court Ginsberg. They reflect the fact that used in Miller and proves precise elusive, a standard it is sometimes, even when easy identify legitimate enough fall within a to instances that regulation. they draw a while fa- line, which, And seek to voring permit expression, legislature free will nonetheless a necessary legitimate accomplish find words consti- (the objective. tutional at Williams, S., Cf. Consti- U. “ clarity always require ‘perfect precise tution does not involved). guidance,’” activity’” “‘expressive even when Ginsberg What, then, is the difference between Miller the one on hand and the law on the It California other? will easy pick often be at which out cases California’s-statute directly involving, say, character who aims, shoots out a police gasoline, lights officer’s douses him with him knee, body, finally burning fire, urinates on kills his him with gunshot game (Footage sequence to the of such head. one record.) has been ante, in the also at submitted 818-819 J.). (opinion Ginsberg, of As in Miller Cali Alito, clearly 'protects games fornia law even the most violent possess literary, political, serious artistic, scientific value. 1746(d)(1)(A)(iii). § it here than in And is easier Miller or Ginsberg separate sheep goats from the at the stat industry ute’s border. That here the itself has is because promulgated process, standards and created a review “typically experience which adults who have with children” games inappropriate assess what for are minors. See En Rating Rating Process, tertainment Board, Software online (all http://www.esrb.org/ratings/&ratings_/process.jsp In ternet 2011, and materials as visited available in June file). Clerk Court’s case Ginsberg is,

There of course, one obvious difference: The depictions “nudity,” statute concerned while California’s extremely games. statute video But concerns' violent vagueness, purposes why that matter? should Justice argues sufficed Miller standard because Auto concerning generally accepted there “certain ex- norms pression similarly to sex,” related there are no “ac- whereas cepted suitability regarding standards violent enter- Ante, tainment.” at 811-812. But there is no evidence that “community is so. The Court relied on standards” Miller precisely difficulty articulating “accepted because of the depictions norms” about I find no difference— sex. can vagueness historical or otherwise—that is to the relevant question. majority’s examples literary the Indeed, de- scriptions violence, on relies, which Justice do not Auto anything show relevant at all. (if more) many

After all, one can find literature as not descriptions physical descriptions love as of violence. In- throughout deed, sex “has been a theme in art literature ages.” Speech the Coalition, v. Free 535 U. 234, S. Ashcroft every every 246 Homer, For is a Titian. For there teenagers Dante, there is an Ovid. for all And who have original Fairy suspect read the Tales, versions of Grimm’s I Lady story there are those who know the Godiva. meaningful vagueness-related Thus, I can find no differ- ences upheld between California’slaw and New York law Ginsberg. vagueness problems, any And if there remain through interpretation. state courts can cure them See (1975) (“state Erznoznik Jacksonville, v. 205, 422 U. S. 216 facially statute should not be deemed invalid unless it is not readily subject narrowing to a construction the state courts”). Ginsberg, (relying S., Cf. at 644 fact U. Appeals knowledge New York Court of a would read requirement statute); Berry into Barbara, v. Santa App. Cal. Rptr. 4th 1075, 1088-1089, 661, 2d Cal. (1995) statute). (reading knowledge requirement a a into Consequently, purposes challenge, this I facial would not find vague. unconstitutionally the statute

III expression. physical games with action combine Video govern- game, predominate physical activity Were requiring parents say,by appropriately intervene, ment could game involving playing actual accompany children when toys presenting restricting target practice, sale generally physical dangers Consumer to children. Safety 2008, Improvement 122 Stat. 3016 Act of

Product (“Title Safety”). But video because I—Children’s Product games expressive embody important and artistic-ele- also agree that the First Amendment ments, I with the Court power regulate. significantly I And limits State’s those lim- has exceeded would determine whether the State by applying a of review. its strict standard majority, that the law must

Like the I believe California “compelling “narrowly interest,” be tailored” to further being restrictive” alternative that without there a “less v. American Civil Reno would be “at least effective.” (1997). I would Union, 844, 874, 875, 621 U. Liberties S. “mechanically.” apply United States this strict standard Playboy Group, Inc., 529 U. v. S. Entertainment (2000) joined by Rehnquist, and J.,C. O’Connor J., (Breyer, applying dissenting). in I would Rather, it, and Scalia, JJ., injures speech- degree the statute evaluate to which potentially justifying of the interests, the nature related degree “compelling which the far- to statute interests,” the possible and effectiveness of that the nature interest, thers light evaluation, overall, whether, this alternatives, and, of proportion speech-related harm... out statute “the works provide.” Ibid. seeks to the benefits that the statute (1992) (plural Freeman, 191, 210 U. 504 S. See also Burson v. scrutiny finding

ity opinion) (applying relevant the strict speech). “significant impingement” on lack a way applied in this are diffi- First Amendment standards scrutiny” satisfy. Applying impossible “strict cult but not upheld speech the Court that, has restrictions on for exam ple, teaching peaceful dispute ban the resolution to a group Department’s organiza on the State list terrorist tions, Holder, S., cf. 27-39; id., U. at but at (Breyer, dissenting), speech places, polling J., Burson, limit near supra, (plurality opinion). applying at 210-211 And less clearly rigorous defined but the Court standards, still has petition signers, require allowed States to Doe disclosure of (2010), impose campaign Reed, v. 561 U. S. 186 contri '“closely bution limits that were to match a drawn’ ‘suffi ” ciently important interest,’ Nixon Shrink Missouri Government v. (2000). C, PA 528 S. 377, U. 387-388 although specify Moreover, not Court did “level scrutiny” applied Ginsberg, subsequently it we have finding “compelling pro described that case a interest” in tecting justify children from harm sufficient to on limitations speech. See Sable Cal., Inc. FCC, Communications v. Ginsberg speci 492 U. S. 115, 126 Since Court prohibition applied fied the statute’s to material that Ginsberg obscene, was S., 390 U. 634,1 at cannot dismiss ground obscenity. on the cf. ante, it concerned But (majority upon opinion). depend 793-794 I Nor need the fact Ginsberg only legislature that the Court in that the insisted finding depictions a have “rational” there basis at issue harmful to children. S., For in this U. at 639. Cali case, considerably fornia has substantiated its claim of harm with stronger evidence.

A imposes California’s law no more than a modest restriction expression. prevents playing The statute no one a from game, prevents buying game, video it no adult from video prevents obtaining it game no child from adolescent provided 1746.1(c). parent § willing help. pre- All it parent’s vents is a buying, child or adolescent from a without gruesomely game assistance, a violent of a video kind keep industry to out of the hands it wants tells us itself Respondents age 8. Brief 17. See under the of those precedent likely upheld, to a create if statute, isNor say, adversely films, or vid- media, other affect that would significant game typical involves video A eos, books. activity. ante, J., 817-818 physical See

amount concurring (Alito, examples increasing (citing of the judgment) in controllers). pushing interactivity game but- And of video prac- target form of interactive, virtual tons achieve an targets), beings (using images while con- tice of human just watching taining component, expressive like an typical at 858. movie. infra,

B support in of the that California advances interest previously compelling. has As de statute is this Court (1) paren the “basic” interest, it consists of both scribed that authority own household to “to in their direct tal claim proper rearing it makes enact children,” of their which [parental] responsibility,” designed discharge of “laws aid (2) well-being “independent in the interest the State’s Ginsberg, youth.” id., at 639, at 689-640. Cf. S.,U. its (“‘[O]ne impose distinguish do not laws which can well n. right support par morality but which children, ” they see their children as fit’ morals of ents to deal with the

(quoting Constitution: The Sin of and the Henkin, Morals (1963))). Obscenity, 391, n. And Colum. L. Rev. fatally it tandem, is not work

where these interests pro advance its interests for a State “underinclusive” present tecting special against in an in harms children through game a default rule that still medium teractive video par parents provide their children with what their allows ents wish. present help As to the need to here.

Both interests guide parents noted 1968 that children, their the Court

“‘parental always guidance provided.'” control or cannot be Today, grade-school-age S., 390 U. at 640. 5.3 million chil- working parents routinely dren of Dept, are home alone. See Minding of Commerce, Bureau, Census Who's Arrangements: Spring Kids? Child Care 2006, 2005/Summer (2010), p. http://www.census.gov/prod/2010pubs/ online at p70-121.pdf. anything, impor- Thus, if has, it become more supplement parents’ authority guide tant to to their chil- development. dren’s independent pointed As State’s we have interest, “ juveniles likely that

out are more to show ‘lack of matu- rity”’ susceptible negative and are “more vulnerable or pressures,” influences and outside and that their “character Roper . . . as well formed as that an adult.” v. Simmons, 543 551, U. S. 569-570 And we have recognized compelling protecting therefore “a in interest physical psychological well-being of minors.” Sable supra, Communications, at 126.

At the same time, there is considerable evidence that Cali significantly compelling fornia’s statute furthers this inter part, games est. That in is, because video are excellent teaching Learning practical tools. task often means de veloping becoming performing habits, accustomed to receiving positive task, performing when reinforcement games help develop that task well. Video can habits, accus performance player tom the task, of the reward player performing Why for task well. else would the incorporate games training? Armed Forces video into its Military Training High-Tech CNN, War Games: Goes (Nov. 2001), http://artieles.cnn.com/2001-11-2/ online at tech/2war.games_l_ictbill-swartout-real-world-traimng?_s= PM.-TECH. military games help

When the uses video soldiers train using purpose. missions, for isit this for a medium beneficial argues teaching But California when features of games put video can ends, to less desirable harm ensue. games particular, extremely can harm children In violent violently aggressive play, rewarding being them violently aggressive thereby teaching them to be often respect games harm this more And video can cause life. typically passive or films or media, such books can

than programs. television support many that California’s studies

There are scientific example, evi have found causal scientists, for views. Social Longitudi playing games in harm. results dence these changes time, over have found studies, nal which measure games exposure causes an video that increased to violent period. aggression & See Möller increase in over same Aggression Exposure and in Krahé, to Violent Video Games Analysis, Aggres Longitudinal 35 German Adolescents: A (2009); Violent Gentile, & Video sive Behavior 75 Gentile Conceptual Analysis, Exemplary 37 J. A Teachers: Games Longitudi (2008); al., Anderson et Youth & Adolescence Aggression Japan in Games nal Effects Violent Video (2008); e1067 Wallen States, 122 Pediatrics and United Aggres Digital and Violence Direct Punamaki, ius & Game Study Longitudinal in of the Roles A sion Adolescence: Age, Applied Communication, J. Sex, and Parent-Child (2008). Developmental Psychology 286

Experimental have that sub- found studies in laboratories game jects randomly play assigned a violent video subse- aggression quently displayed than characteristics more g., played games. e. See, Anderson those who nonviolent Specific Effects of Violent al., Con- et Violent Video Games: Aggressive Thoughts 36 Advances Behavior, and tent on (2004). Experimental Psychology Soc. eighth grade

Surveys ninth students have found and games aggres- playing video between violent correlation Lynch, g., Ef- Linder, Walsh, & Gentile, e. See, sion. Hostility, on Adolescent

fects of Video Game Habits Violent Performance, Aggressive 27 J. Adoles- and School Behaviors, (2004). cence 5 shown that “virtual

Cutting-edge neuroscience has vio- lence in video neural game patterns results those playing that are considered characteristic for aggressive cognition & Weber, Ritterfeld, Mathiak, and behavior.” Does Playing Violent Video Games Induce Aggression? Empirical Evi- of a dence Functional Resonance Magnetic Imaging Study, Media Psychology i. e.,

And all studies, have “meta-analyses,” studies concluded that to violent “was exposure games video posi associated with tively behavior, aggressive aggressive cogni tion, affect,” violent aggressive “playing video games is a causal risk harmful long-term factor out et al., comes.” Anderson Violent Video Game Effects on Aggression, Empathy, Prosocial Behavior Eastern and Western Review, Countries: A Meta-Analytic Psy (2010) added). Bull. chological 151, 167, 169 (emphasis Some of these studies take in a care to explain common- sense way why video more games are harmful potentially than, say, films books or television. In essence, they say that the a closer child’s comes, behavior not to but watching, acting out horrific violence, greater the potential psy- harm. chological Huesmann, See Bushman & Aggression, in 2 Handbook (S. of Social Psychology Fiske, Gilbert, (video D. & 2010) G. 5th Lindzey eds., games ed. stimulate more aggression because learn better “[p]eople when they are actively “more are involved,” players likely to with identify characters,” violent games directly “violent & van behavior”); reward violent Polman, Castro, Aken, de Experimental of the Differential of Study Effects Playing Versus Watching Violent Video on Games Children’s Aggres- sive (2008) Behavior, Aggressive Behavior 256 (finding greater from aggression resulting playing, opposed watching, violent game); Anderson, Gentile, & C. D. K. Buckley, Violent Video Game Effects on Children and Ado- (2007) (three lescents 136-137 studies finding greater ef- television). fects from games as opposed See also infra (statements public expert health page and 854-855 this games be more agreeing can that interactive associations television); ante, at “passive” 816- like than media harmful (Alito, concurring judgment). J., Experts all Like these studies. conclusions debate the study many, behavior, perhaps each of human most, studies produced critics have stud- of those critics, has and some its they reach different conclusions. of their own which ies (I appendixes.) like most I, in the sets of list both research say expertise definitively judges, lack the science social professionals public right. health But who associations many expertise possess reviewed these that have who do games, significant violent video risk that and found studies particularly compared passive media, more when with likely to cause children harm. Academy years ago, example, the American

Eleven Academy & of Child Adolescent Pediatrics, the American Psychological Psychiatry, Association, the the American Academy American Association, the American Medical Psychiatric Physicians, Family the American Association joint statement, said: released which point overwhelmingly

“[O]ver to a . . studies . aggres violence and causal between media connection though [and, . . . less re behavior in some children sive preliminary time, had studies search been done at that] impact interactive enter of violent indicated media) (video games tainment and other interactive young may people significantly more severe than ... be wrought by movies, or music.” Joint television, Impact on of Entertainment Violence Statement (2000) added), http:// (emphasis at online on Children www.aap.org/advocacy/releases/jstmtevc.htm. years done, had later,

Five more research been after adopted Psychological a resolution American Association said: analysis “[Comprehensive of violent interactive video game suggests exposure ag- research such ... increases gressive aggressive thoughts,... behavior,... increases angry feelings,... helpful increases decreases behavior, physiological and ... increases arousal.” Resolution on (2005), Violence in and Video Games Interactive Media http://www.apa.org/about/governance/council/ online policy/interaetive-media.pdf.

The association added: practice, repetition,

“[T]he and rewards for acts of vio- may increasing aggressive lence be more conducive to among youth passively behavior children and than Ibid, watching (empha- films.” in violence and TV added). sis years Academy

Four that, after the American significant part Pediatrics issued a statement in about inter- active media. It said: rapidly growing

“Studies of these and ever-more- sophisticated types of have media indicated that the ef- may fects child-initiated virtual violence be even more profound passive than those such as media television. many games, teenager In child ‘embedded’ in (handheld controller) game ‘joystick’ uses experience aggressive enhances both feel- ings.” Policy Violence, Statement —Media 124 Pediat- (2009) added). (emphasis rics 1495, It added: experimental

“Correlational and studies have revealed games aggressive that violent video lead increases aggressive thinking pro- behavior decreases longitudinal social behavior. Recent . studies . . have high exposure revealed months, that in as little as 3 games physical aggression. to violent video increased

855 longitudinal ... have revealed simi- studies recent Other Ibid, (footnotes omitted). years.” effects across lar grounds majority, find sufficient in I would Unlike the expert opinions for to defer this Court these studies games legislature’s that the video conclusion an elected likely particularly question to harm children. This are always legislature thought it an has owed elected legislative Court degree respect to facts deference in some they particularly involve technical kind, this when matters beyond competence, and even First Amend our (deferring, S., at Holder, U. 33-34 ment cases. See scrutiny, applying national strict Government’s while Broadcasting System, security judgments); Inc. Turner v. (1997) (deferring, apply while

FCC, 520 U. 195-196 S. technological ing scrutiny, to Government’s intermediate reaching opposite judgments). majority, its own, The grants validity relevant studies, of the conclusion about Compare legislature ante, all. at 800 no at deference (stating provide evidence that violent that the studies do deleted)), supra, games (emphasis with harm video “cause” causation). longitudinal finding (citing studies C alternative to I “less restrictive” California’s can no find Reno, “at effective.” See be least as law that would voluntary majority points to a alterna- at 874. S.,U. industry buy- prevent those under from

tive: The tries to games games labeling extremely ing those with violent (Mature) encouraging to restrict retailers then- “M” an ante, But this older. at 803. vol- those 17 and sales to gaps. untary system enforcement When Cali- has serious (FTC) Trade Commission law, its a Federal fornia enacted nearly unaccompanied study 70% of 13- to had found buy games. 16-year-olds FTC, video were able to M-rated (2004), Marketing on- Children Violent Entertainment http://www.ftc.gov/os/2004/07/040708kidsviolencerpt. line at

pdf. Subsequently voluntary program has become more update But as of the effective. FTC’s most recent Con- gress, buy 20% of those 17 are to under still able M-rated by games, breaking and, video down sales one store, finds nearly large that number this rises to 50% in the one case of Marketing FTC, chain. national Violent Entertainment to (2009), http://www.ftc.gov/os/2009/12/ Children online at P994511violententertainment.pdf. industry the And could easily noncompliance revert back to the substantial that ex- particularly today’s ruling isted in after broad reduces industry’s police incentive to itself. industry argues technological The also for an alternative “ namely, [filtering solution, at the level.” console Brief for Respondents only quick 53. But it takes a search the In- guides explaining any ternet to find how to circumvent such technological example, viewers, controls. YouTube have (called guides bypass parental watched one those to “How 860”) controls on the Xbox more 47,000 than times. See http://www.youtube.com/watch?v=CFlVfVmvN6k.

I V upshot applied is that California’s statute, to its (i. applications buyers heartland of extremely e., 17; under games), imposes violent, realistic video a restriction on speech justified that is modest at That most. restriction is by compelling parents’ (supplementing interest efforts to prevent their purchasing potentially harmful children from material). equally violent, interactive And there is no effec- tive, less restrictive alternative. is California’s statute con- sequently though litigants constitutional on its remain face— challenge free applied particular to the statute as in- including any by apply stances, effort the State to it to mi- aged nors 17. majority’s

I add that the different conclusion creates a se- anomaly rious Ginsberg in First Amendment law. makes depic- prohibit to minors the sale clear that a State can nudity; today makes clear that a State tions of Court prohibit inter- most violent minors of cannot sale games. it sense does make forbid active video But what image boy magazine selling 13-year-old with an to a 13-year-old protecting woman, a sale nude while actively, virtually, game he an interactive which but video gags and kills woman, then tortures her? binds and permit govern- kind of First Amendment would What by restricting protect sales of ex- ment children tremely only game when bound, violent video woman— topless? gagged, also tortured, and killed—is anomaly compelled the First

This Amendment. disappears recognizes that extreme violence, It once one literary, artistic, or where similar interactive, and without justification, prove more, if not harmful to as, can least nudity. photographs the record here children And is why adequate support That such view. is I more than Ginsberg here a the outcome believe controls fortiori. why law is it I constitutional

And is believe California’s its face. censorship ultimately than it less about

This case is in cannot succeed secur- education. Our Constitution about ing protect we unless can raise future the liberties it seeks making system generations cooperatively to our committed government however, is Education, about choices. work. by making choices learn need to Sometimes, children by are made for choices times, themselves. Other children— people acting parents, by teachers, and their their my democratically governments. through In view, their helping government from First not disable Amendment does parents not to have their choice make such choice here —a games, buy extremely violent, video interactive children only reasonably pose they risk of fear which more than harm those children. respectfully dissent. reasons,

For I these

APPENDIXES Library, Supreme With the I assistance of the Court have compiled appendixes listing peer-reviewed two these aca journal topic psychological demic articles on the harm resulting playing games. library from violent The video following conducted a search for relevant on the articles PsycINFO, PubMed, databases: Search Premier, Academic (files (OCLC), Dialog 7, 98, ArticleFirst 1, 34, 121, 142, 149). “(video* following search terms were used: online) (attack* computer (game*) or or arcade or fight* aggress* ang* or or or or or violen* hostil* or arous* prosocial help* empathy).” or or or desens* After or elimi nating irrelevant matches title abstract, based on I categorized hypothe supporting these articles as either (listed games Appendix sis that violent video are harmful A), or supporting/rejecting hypothesis that violent (listed B). games Appendix video are harmful Many, but not all, of these were articles available to the Legislature parties briefing California or the this case. they suggest I list them because there is substantial controverted) (though supporting expert evidence professionals associ- public ations of health that have concluded that games psychological violent video can cause children harm. supra, consequently, at 853-855. And these studies help validity original judgment substantiate the of the Legislature, judgment’s California as well as that contin- uing validity.

A Anderson & Bushman, Effects of Video Violent Games on

Aggressive Aggressive Cognition, Aggressive Behavior, Physiological Affeet, Arousal, and Prosocial Behavior: A Meta-Analytic Psy- Review of the 12 Literature, Scientific chological (2001). Psychological Society Science:J. Am. 353 Aggressive Thoughts, Anderson Dill,& Video Games and Feelings, Laboratory and Behavior in the and in Life, 78 (2000). Personality Psychology J. & Soc. 772

859 Effects Specific et Games: Vio- al., Violent Video Anderson 36 Behavior, and Ad- lent Content on Thoughts Aggressive (2004). 199 Psychology vances in Experimental Soc. the Game Short-Term Ford, Player:

Anderson & Affect of Games, Video 12 Mildly Effects Highly Aggressive (1986). 390 Bull. Psychology & Soc. Personality In- Without Aggression Anderson & Morrow, Competitive In- teraction: Versus Cooperative Effects of Competitive in Video 21 Games, on Behavior structions Aggressive (1995). & Bull. 1020 Personality Soc. Psychology of Violent Video Games al., et Effects Anderson Longitudinal States, on the United 122 Pediat- Aggression Japan (2008). rics el067 on Effects al.,

Anderson et Game Aggression, Violent Video and Western Behavior Eastern Empathy, Prosocial Review, 136 A Meta-Analytic Psychological Countries: (2010). Bull. 151 Effects of Violent

Anderson, An on the Playing Update (2004). Games, Video 27 Adolescence J. Youth, of Media Violence al.,

Anderson et The Influence (2003). Interest 81 in the Public Science Psychological Effects Violent Sports & Anderson Causal Carnagey, Is It or Vio- Competitiveness Games on Video Aggression: Soc. Psychology lent Content? 45 J. Experimental (2009). Games Aggressive Violent Video

Anderson & Murphy, Behavior 423 Women, Aggressive Behavior in Young (2003). Monteiro, Computer & Violent Esteves, Carneiro,

Arriaga, and Physiolog- Their on State Hostility Games and Effects (2006). ical Behavior Arousal, Aggressive Effects Esteves, Monteiro, Are the Carneiro, & Arriaga, Playing When Violent Pronounced Unreal Video Games Behavior 34 Aggressive Reality With Virtual System?

860

Baldaro al., et and Aggressive Videogames: Non-Violent

Short-Term and Psychological Cardiovascular Effects on Habitual 20 Players, Stress & J. Int'l Society Health: (2004). Investigation Stress 203

Ballard, Panee,. Hamby, Nivens, & Repeated Exposure

Video Came Results in Play Decreased Pressure Blood Re- 8 (2006). Media sponding, 323 Psychology Ballard & Lineberger, Video and Game Violence Confederate

Gender: Effects on Reward and Punishment Given Col- Males, 41 lege (1999). Sex Roles 541 &, Wiest, (tm):

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Short-Term Violent Video Game Effects Last? 35 Aggres- (2009). sive Behavior 225

Barlett, Rodeheffer, Baldassaro, Hinkin, & The Harris, Ef-

fect of Advances Video Technology Game and Content on Aggressive Cognitions, Hostility, Rate, Heart (2008). Media Psychology

Barlett, Harris, & Baldassaro, You Longer Play, More

Hostile You Feel: Examination of First Person Shooter Video Games and Aggression Video Game During Play, Aggressive (2007). Behavior 486

Barlett, Harris, & Bruey, Effect of the Amount Blood

in a Violent Video Game on Aggression, Hostility, and Arousal, J. (2008). Experimental Soc. Psychology 539 Barlett & Rodeheffer, Effects of Realism on Extended Vio-

lent and Nonviolent Video Game Play Aggressive Thoughts, Feelings, Arousal, 35 Physiological Aggres- sive (2009). Behavior 213

Barlett, Anderson, & Video Game Swing, Effects —Con-

firmed, Suspected, A Review of Evi- Speculative: dence, 40 Simulation & Gaming 377

Bartholow, Sestir, & Davis, Correlates and Consequences

Exposure to Video Game Violence: Hostile Personality, & Behavior, Personality 31 and Soc. Empathy, Aggressive (2005). Bull. 1573 Psychology Anderson, of Violent Video Games on

Bartholow & Effects Differences, 38 Ex- Behavior: Potential Sex J. Aggressive (2002). 283 Soc. perimental Psychology

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Bluemke, Friedrich, Violent and on Games Measures of Computer Implicit Nonviolent (2010). 36 Behavior 1 Aggressiveness, Aggressive Brady & Matthews, Violence on Health- Effects of Media Men,

Related Outcomes 160 Archives of Pe- Among Young (2006). diatrics & Med. 341 Adolescent

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Media on Public-Health Children and Adolescents: Ap- (2005). 365 702 Lancet proach,

Bushman & Video and Hostile Ex- Anderson, Violent Games Model, A Aggression Test of the General 28

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Bushman Numb: Ef- Anderson, Desensitizing & Others, 20 fects of on Helping Psychological Violent Media (2009). Society J. 273 Science: Am. Psychological Bushman, Rothstein, & Anderson, Much Ado About Some- and a Effects School Red Violent Video

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Case Details

Case Name: Brown v. Entertainment Merchants Assn.

Court Name: Supreme Court of the United States

Date Published: Jun 27, 2011

Citation: 564 U.S. 786

Docket Number: 08-1448

Court Abbreviation: SCOTUS