Protecting Protected Speech: Violent Video Game Legislation Post- Brown v. Entertainment Merchants Ass’n

IntroductionSince their inception two decades ago, violent video games have caused quite a stir.1 Concern reached a fever pitch following an outbreak of youth violence manifested as a series of school shootings in the late 1990s.2 Partially blamed for the events, violent video games entered the realm of public discussion as parents clamored for a legislative solution.3 Psychological studies conducted around the same time seemed to support the view that these games lead to increased aggression in the children that played them.4 In the years since, several states have either passed or considered passing laws that restrict the sale of violent video games to minors.5 In every instance, organizations representing the video game industry have successfully challenged these laws in court.6 In addition to discrediting the persuasiveness of the aforementioned studies, courts have repeatedly held these laws to be in violation of the First Amendment.7The most recent attempt by a state to regulate the sale of violent video games occurred in California in 2005.8 Following the long line of cases preceding it, the Entertainment Merchants Association (EMA), an entertainment trade group, successfully won invalidation of a law that sought to restrict the sale of violent video games to children.9 California appealed to the U.S. Court of Appeals for the Ninth Circuit, where the law was similarly held to be in violation of the First Amendment.10 Surprising both sides of the debate, the Supreme Court granted certiorari, marking the first time that the Court has heard a case considering the constitutionality of a violent video game law.11 In its landmark 2011 decision, the Supreme Court resoundingly struck down California's attempt to regulate violent video game sales.12This Note argues that current and future efforts to regulate violent video games should and will continue to fail constitutional scrutiny.13 Legislators should instead focus on mandating that video game devel- opers and retailers participate in the exceedingly successful Entertainment Software Rating Board (ESRB) rating system.14Part I of this Note introduces obscenity law and its progeny, variable obscenity.15 Part II explores the difficulties inherent in regulating speech otherwise protected by the First Amendment, outlining both successful and failed efforts by state legislatures to shield children from explicit media.16 Part III describes the arguments used by proponents of violent video game regulation and introduces California's recent attempt to regulate the purchase of violent video games, Brown v. Entertainment Merchants Assn.17 Finally, Part IV scrutinizes the studies and statistics that the proponents of regulation rely on and explains why the California statute at issue in Brown violated the First Amendment of the Constitution.18 It then articulates why Brown offers legislators the ideal opportunity to enact plausible reform that passes constitutional scrutiny.19I. The Supreme Court's Treatment of Obscene SpeechThis Part considers the history of obscenity jurisprudence, including the Supreme Court's creation of so-called "variable obscenity."20 Section A follows the Supreme Court's decades-long process refining the definition of obscenity.21 Section B introduces the doctrine of variable obscenity, which states that some material appropriate for adults may nevertheless be obscene to children.22 Section C exhibits how difficult it is to expand upon the type of material covered by obscenity law.23 Finally, Section D articulates the reservations Justice William Brennan developed with the very obscenity law he helped create.24A. Tradng the Shifting Definition of ObscenityLegislators who have attempted to restrict a minor's access to violent video games have argued that such material is obscene and thus devoid of First Amendment protection.25 Accordingly, in order to understand the legal underpinnings of violent video game law's, it is important to explore the line where free speech ends and obscene speech unprotected by the First Amendment begins. …