Jenner & Block

U.S. Supreme Court Affirms Unconstitutionality of California Video Games Law

In a major victory for Jenner & Block’s video game industry clients, on June 27, 2011, the United States Supreme Court struck down a California law that would have restricted the sale or rental to anyone under the age of 18, of video and computer games, based on their content.  In a landmark 7-2 decision, the Court ruled that the law in question, prohibiting the sale or rental of “violent video games” to minors and requiring their packaging to be labeled “18,” is an unconstitutional violation of video gamemakers’ and retailers’ freedom of speech.  The ruling, affirmed an earlier Ninth Circuit Court of Appeals decision in the case.

In writing the Court’s opinion, Justice Antonin Scalia noted that video games are a form of expression protected by the First Amendment.  “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).  That suffices to confer First Amendment protection,” Justice Scalia wrote.

Referring to the California law as an attempt to create a “wholly new category of content-based regulation that is permissible only for speech directed at children,” Justice Scalia continued, “That is unprecedented and mistaken.”

“Even where the protection of children is the object, the constitutional limits on governmental action apply,” the opinion concluded.

Jenner & Block Partner Paul M. Smith argued the case, Brown v. Entertainment Merchants Association, et al.  Other members of the Firm’s team on the matter were Partners Katherine A. Fallow, Matthew S. Hellman, William M. Hohengarten and Duane Pozza; Associates David Z. Moskowitz and Krishanti Vignarajah; former associate Jonathan F. Olin; and Senior Paralegal Cheryl L. Olson.

The decision in the closely watched case was welcomed not only by the multi-billion dollar video game industry, but by numerous other content creators and distributors, elected officials and constitutional scholars, who had been concerned about the potential effect an opposite result would have had on freedom of expression for all artists and writers.

In the past decade the firm has successfully challenged similar laws in a number of other states and localities.  The California case is the first case in which the Supreme Court has addressed such laws.


Please click here for the Court’s opinion.