The Supreme court of the United States of America today finalized their decision in the Brown v. EMA (fully: Edmund G. Brown, Jr., Governor of California, et al., petitioners v. Entertainment Merchants Association et al) case in favor of the EMA.
The law would have required retailers in California to require proof of majority to sell games with any depiction of violence toward people, which is a majority of all video games. After it passed, years back, the EMA got worried; if that kind of law spread it could do serious damage to the video games industry. They appealed the law all the way to the Supreme Court, who have now overturned the law on First Amendment grounds.
The core of the opinion is this:
Because speech about violence is not obscene, it is of noconsequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child. We held that the legislature could “adjus[t] the definition of obscenity ‘to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests . . .’ of . . . minors. ” Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502, 509 (1966)). And because “obscenity is not protected expression,” the New York statute could be sustained so long as the legislature’s judgment that the proscribed materials were harmful to children “was not irrational.” 390 U. S., at 641.
The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.
That is unprecedented and mistaken.
The entire syllabus and opinion can be read in the official court decision document.
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