1. Why did the Supreme Court apply the “strict scrutiny” standard to the California statute?

2. If the expert testimony had been conclusive and scientifically proven, would the Court’s decision be different? Why or why not?

3. Should states be legislating this type of conduct, or should such conduct be solely a private issue to be decided on and enforced by parents or guardians?

In 2005, California passed a law that banned the sale or rental of violent video games to anyone under age 18 and required warning labels beyond the existing Entertainment Software Ratings Board’s voluntary rating system. The law covered games in which players had the options of killing, maiming, dismembering, or sexually assaulting characters that represent human beings. Entertainment Merchants Association (EMA), an association of companies in the video games business, sued the state of California, seeking to have the new law declared unconstitutional. The federal trial court concluded that the statute violated the First Amendment and prevented enforcement of the law. On appeal, the federal appellate court affirmed the decision of the trial court. California appealed to the U.S. Supreme Court.

The U.S. Supreme Court ruled in favor of the EMA and struck down the law as unconstitutional. The Court held that video games are considered speech, similar to plays and movies, and are therefore protected by the First Amendment despite the fact that some people find the video games offensive. Because the law restricted speech, the Court applied a strict scrutiny analysis to the statute and found that (1) California failed to meet its burden of proving a compelling government interest through the use of expert testimony and (2) the law was both too broad (i.e., it covered minors whose parents believed violent video games were harmless) and too narrow (i.e., it did not cover other forms of violent expression such as novels). Finally, the Court distinguished violence from obscenity by ruling that violent speech in this context was protected under the First Amendment.

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.  .  .  .  That is a demanding standard  .  .  .  [and] California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors . . . The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, ‘[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.’ They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. [. . .] Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’ ”