World of Courtcraft: Leave Them Kids Alone

The Supreme Court today handed down its opinion in Brown v. Entertainment Merchants Association, the case challenging California’s prohibition on the sale of violent video games to minors.  In a victory for free speech and minor’s rights, the Court held that video games are protected expression and that California may not restrict minors’ access to protected content, violent or otherwise.
CDT organized a coalition of Internet industry groups and others to file a friend-of-the-court brief in this case in September, and CDT’s John Morris reported on the oral arguments before the Court this past November.  While the California statute did not directly seek to regulate online gaming, the case had potential implications for the online world, particularly as gaming increasingly moves online.
Writing for the majority, Justice Scalia revealed himself to be a strong advocate of minors’ First Amendment rights, noting that, “No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”  He goes on to discuss how, in U.S. jurisprudence, only content that is sexual in nature can be both constitutionally protected for adults and yet restricted for minors.  While this special treatment of sexual content can seem Puritanical, it remains the case that U.S. law has never restricted minors’ access to violent content.  As Justice Scalia detailed in the Court’s opinion, stories intended for young audiences – from Grimm’s Fairy Tales to The Lord of the Flies  – often depict children grappling with, and even committing, violence.  The Court’s decision today holds that video game violence cannot be singled out as a particular category deserving less First Amendment protection.
Not all of the Justices agreed on this point; notably, Justice Thomas argued in dissent that “speech to minor children bypassing their parents” falls outside of the type of speech the First Amendment was originally intended to protect.  Taking his originalist perspective to something of an extreme, Thomas investigates the Founding Fathers’ attitudes toward parenting in part by citing pre-Revolutionary writings on “The Well-Ordered Family” and letters from Thomas Jefferson to his daughter Martha instructing her, “Inform me what books you read [and] what tunes you learn.”  
But the majority opinion rejects the notion that “the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.”  Minors have rights independent from their parents, and while parents have rights to make parenting decisions, a content-restricting law that requires minors to obtain parental consent sets the baseline for minors’ access to content at what the government thinks is appropriate.  Or, as the majority puts it, “While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want.”  
The critical balance here is that although parents have rights, minors also have rights, and the government must give due respect to each. A parent’s rights to, for example, restrict a child’s access to certain content do not automatically trump the child’s rights to get access to the content anyway.  In other words, Thomas Jefferson may have had a right to instruct his daughter to report all of the books she read, but Martha had the right to read something on the sly.  And the government has no business getting involved by, say, ordering Martha to report her playlist unless her father vetoes its disclosure.
The Court rejects California’s paternalism and instead points to voluntary efforts by the video game industry to help parents make decisions about what content is right for their children.  The Entertainment Software Ratings Board has developed a system for rating games that “does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home.”  And, as the gaming industry argued (and we supported in our brief), video game consoles and online gaming platforms also provide parents with settings and tools that allow parents to restrict their children’s ability to play higher-rated games. The availability of user empowerment tools, including content blocking and filtering software that parents can use to restrict the type of material their children can access, has long formed the foundation for free expression online, and it is yet another reason that overbearing statutes like the California legislation are unnecessary and unconstitutional.
We are pleased to see the Court both mount a vibrant defense of minors’ First Amendment rights and reiterate that it is a job for parents, not the government, to decide what type of material is appropriate for children.

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