In Brown v. Entertainment Merchants Association, 11 C.D.O.S. 7874, the U.S. Supreme Court struck down California legislation that would have banned the sale of some violent video games to children without parental supervision. While the court’s decision underscored the robust First Amendment protections that apply to video game content, it also turned on the fact that the video game industry has implemented an effective content rating system over the past decade, which accomplished much of the same goals as the proposed legislation. The video game industry’s success in Brown shows that content self-regulation may permit an industry to control attempts at content legislation, as well as public relations. However, self-regulation carries with it its own costs and pitfalls, and effective self-regulation requires careful attention to the design, implementation, effectiveness and liabilities involved.
First Amendment applied to video games
Recent years have seen an explosion of scientific studies and media attention devoted to violence and sexual content in video games. Legislation soon followed, including California Assembly Bill 1179 (passed in 2005), which prohibited the sale or rental of “violent video games” to minors and required that such games be explicitly labeled as “18.” The punishment for noncompliance was a fine of $1,000. The act incorporated First Amendment case law concepts in defining “violent video games” as games providing the options of “killing, maiming, dismembering, or sexually assaulting an image of a human being” depicted in a “patently offensive” way that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors” based on prevailing community standards. The law was quickly challenged by representatives of the gaming industry in Brown, and was enjoined as unconstitutional, a decision that wended its way to the Supreme Court.
